Sources of power available to federal, state, and local governments to deal with the problems created by airport development and
operation
Safety is a major concern of those living near an airport as a preponderance of aircraft accidents occur within a mile of the
airport
Most aviation litigation in the area of airports and airspace has focused on 2 main areas:
1. aircraft noise and
2. keeping the airport's approaches clear of obstacles
Sources of Power: US - all public airports that receive scheduled airline passenger service are owned and operated by
state or local (city or county) governments or regional authorities having governmental powers
These governments have relied upon sources of power derived from both the US Constitution and their inherent powers as proprietors of
these airports (which are considered public utilities)
Eminent Domain: governments have the right to take private land within their jurisdiction for public use (whether or not
the owner wishes to sell)
5th Amendment: requires that when government takes private property for public use, it must pay the landowner just
compensation
If landowner is unwilling to sell or if the two parties cannot agree on a fair price the government files a condemnation lawsuit, which
seeks a court order establishing the price to be paid and ordering transfer of title to the government upon payment
Police Power: government’s right to adopt and enforce laws to protect the public health, safety, and welfare – this is
the power relied upon by state, regional and local governments as authority for adoption of land use zoning and height zoning ordinances in the vicinity of airports as well as noise
ordinances
Commerce Clause of US Constitution: gives federal government exclusive right to regulate interstate and foreign commerce
– source of authority for all federal regulation of aviation
Supremacy Clause of US Constitution: provides that where federal government has adopted statutes or regulations
governing some activity that it is authorized to regulate (like aviation) then state, regional or local governments may not enact or enforce laws conflicting with federal law
Proprietary Powers: governmental entity that owns and operates the airport has a measure of authority as proprietor to
regulate the use of that airport, much as the owner of a private airport would
Power to tax: all governments have the inherent power to impose taxes on persons, property, and transactions within
their jurisdiction
Power of the Purse: proceeds of federal taxes on airline passenger tickets and aviation fuels have built up a
multi-billion dollar Aviation Trust Fund
Congress – with FAA’s advice – budgets expenditure of this money for airport planning, development, and improvement through a program of
grants – Airport Improvement Program
Map of FY2020 interactive
This may include providing funds to acquire land and aviation easements for noise abatement purposes and to soundproof existing buildings
near the airport – federal funds may be allocated to cover up to 95% of a project’s cost – grants come with strings attached
Many states have similar programs – funded by state aircraft fuel taxes, registrations fees and specific ownership taxes - may
provide funds to cover that portion of project not covered by federal funds
August 8, 2016 - Airport Fund Lost Up To $2 Billion
Military Airport Program (MAP) – additional federal funds – can cover costs of converting closed military airfields to civilian airport use
- Police Power
Pacific Northwest – Seattle-Tacoma – new regional airport to be built
To avoid inverse condemnation suits – legislature drafted statute authorizing the airport to include an elaborate recital creating the
airport under the police power in the interest of public welfare
BUT
Adjacent landowner filed suit – court held that although building a public use airport is certainly a proper exercise of police power, if
the effect is to take private property rights for a public use, that exercise of police power is also an exercise of power of eminent domain so governmental entity owner must pay just
compensation
Riverside, California
County was building a new general aviation airport - Ryan Field
In the exercise of its police power the county adopted height zoning restrictions that applied to property near each end of the runway to
prevent landowners from building obstructions into the landing glide path
Maximum heights permitted proceeded outward and upward in a stair step fashion – only very low structures were permitted close to the
runway and progressively higher structures permitted farther away
Sneed v. County of
Riverside
Sneed owned 234 acres immediately adjacent to the runway threshold
Under the new height zoning ordinance, the tallest structure that could be built on that portion of his property farthest from the runway
end was 24 feet and at the closest end a mere 3 inches
Although the zoning was a valid and permissible exercise of the police power at least in Sneed’s case, the height zoning ordinance also
constituted a taking of his private property for a public use through the power of eminent domain requiring the county to pay him just compensation
Santa Barbara, California
Smith v. Santa Barbara
County
Smith owned land in residentially zoned subdivision
County government wishing to build an airline airport nearby used its police power to enact a new land use zoning ordinance governing the
uses to which property in the vicinity of the new airport could be put
Smith’s land was thus rezoned to industrial use
Smith sued
Court found that the ordinance was a valid exercise of county’s police power and did not involve the power of eminent domain so county
was not liable to pay compensation
Land use zoning is now a very popular tool used nationwide in new airport planning
In the planning process airport planners predict the airport’s noise footprint, as it will fall on surrounding land
Sound level measurement method used today – DNL (Day-Night Sound Level) – developed by the US Environmental Protection Agency to permit comparison of
noise levels from all types of urban sources - measures ambient noise including aircraft noise and imposes penalty for night time (10pm to 7am) operations – generally accepted
that 65 DNLs or higher is incompatible with noise-sensitive land uses (homes, schools, churches, hospitals)
Humans perceive an increase of 10 decibels as a doubling of the noise level
Use zoning is a two-edged sword that may be used not only to protect airports from the encroachment of noise sensitive residential
communities but also to protect residential communities from the encroachment of noisy airports
Garden State Farms, Inc., New Jersey
Garden
State Farms, Inc. v. Bay
Court held that state and local governments might also exercise their police power to protect the public health, safety and welfare by
land use zoning to exclude aircraft landing areas
Injunctions for nuisance
Sometimes residents who are annoyed by the proximity of an airport seek to obtain an injunction from a court to declare the operation of
the airport a nuisance and order it to cease operation
Nuisance: intentional tort – generally a continuing one rather than an isolated incident – private nuisance is a non-trespassory
interference with an individual plaintiff’s use or enjoyment of his property
If a court finds an activity a nuisance the option is either to award the plaintiff money damages or to issue an injunction prohibiting
continuation of the activity that constitutes the nuisance
American law – mostly follows law of England
At time of Declaration of Independence – England had 2 separate sets of courts each with its own body of laws and
powers:
- Courts of Law – judges trained in common law applied the law – entered judgments for money damages
- Courts of Chancery – judges selected for Solomonic wisdom “did equity” meaning issued orders that simply seemed fair – entered orders
for people to do or refrain from doing something
US law today combines the two – as a general rule though courts consider equitable remedies (like injunctions) to be extraordinary
remedies that should be awarded only if there is no adequate remedy at law
Loma Portal Civic Club
v. American Airlines
No court has ever enjoined the operation of a publicly owned airport in the US
Privately owned airports however have not been so lucky – some have been found to be nuisances and have been enjoined against continuing
operations
The Power to Tax
Local governments have also effectively used their power to impose taxes on real property to force out private airports – while the
airport will still have grandfather rights to continue operation, as a nonconforming use despite the rezoning, property taxes will increase dramatically
Noise ordinances
The onset of a nationwide epidemic of aircraft noise related litigation was triggered by the introduction into airline service of the
first generation of jets:
- Boeing 707
- Douglas DC-8
- Convair 880
These aircraft were far noisier than the propeller-driven aircraft before them or even the later jets after them
Allegheny Airlines v. Village of Cedarhurst
In response to citizen rage over the new noise level the village government adopted a municipal ordinance that prohibited flying over the
village at less than 1000 feet AGL
FAA mandated flights over the village below 1000 feet AGL in direct conflict with the ordinance – Federal law preempts the ordinance due
to Supremacy Clause so municipal ordinance was rendered unenforceable
Airlines v. Town of Hempstead
The court found that the ordinance, as applied against aircraft, was in direct conflict with the federal regulatory scheme – supremacy
clause would prohibit the town from enforcing a noise ordinance against aircraft
Parachutes, Inc. v. Township of Lakewood
Federal government exercised little control over the flight pattern \s of these aircraft - no control tower at airport – only
contact these aircraft had with ATC was to report to NY Center 1 minute before each jump and then later when last jumper had landed
Court found that the enforcement of the township’s ordinance against the aircraft did not conflict with any regulatory scheme, so the
supremacy clause did not come into play – so enforcement against these aircraft legally valid
Proprietary Powers: Curfews and Restrictions on Airport Use
West Coast, Santa Monica – SMO – Santa Monica Municipal Airport
Acting in its capacity as the proprietor of the airport, the city imposed a curfew on jet aircraft operations at the airport between the
hours of 11pm and 7am
The validity of the curfew was challenged in court
Stagg v. Santa Monica – Santa Monica 1
Court found that the jet curfew did not conflict with any federal regulatory scheme so that the supremacy was no barrier, and that it was
a valid exercise of the police power since it was intended to protect the public health and welfare by affording citizens a better night’s sleep
City of Santa Monica as proprietor of its municipal airport adopted 5 more restrictions in form of airport use
regulations:
- Curfew: engine starts and takeoffs by any aircraft were prohibited between 11pm and 6am
- Fixed wing flight training: touch-and-go landings, stop-and-go landings and low approaches were prohibited on weekends and
holidays
- Helicopter flight training: prohibited at all times
- Noise limit: aircraft operations exceeding a 100-decibel single0event noise level (SENEL) were prohibited (and noise meters were
installed off both runway ends)
- Jet prohibition: all jets were prohibited from using the airport at all times
Santa Monica Airport Association v. Santa Monica – Santa Monica 2
Court held that the constitutional validity of regulations limiting the use of a public airport adopted by a governmental entity in its
capacity as proprietor of that airport depends upon a 3-step test:
- if the regulation does not affect interstate commerce, it is constitutionally valid so move to next question
- if the governmental entity acted within its jurisdiction and the regulation is reasonable, it is enforceable so move to next
question
- if the regulation does not discriminate between interstate and intrastate commerce and it has only a slight effect on interstate
commerce it is valid
Using this line of reasoning, Santa Monica’s first 4 regulations were legally valid and enforceable – BUT the fifth was void because it
imposed an impermissible burden on interstate commerce and was unreasonable
The city of Santa Monica reduced the level from 100 decibels to 85, which virtually no powered aircraft could meet
Santa Monica 3
Amicus curiae – friend of the court
Grant agreement: FAA notified the city that unless it backed off to a more reasonable single-event noise limit on aircraft, the FAA would
consider the city to be in breach of its grant agreements and would take legal action to compel the city to repay all federal funds it had obtained
City increased noise limit to 95 decibels
In 2003 the city imposed a new landing fee schedule at the airport as part of funding stream for its maintenance program for runways,
taxiways and ramps – fees were a sliding scale based on aircraft weight (ranging from 29cents to $5.81 per pound)
The FAA investigated and in 2005 sided with aircraft operators finding the fee schedule to be unreasonable and to result in unjust
enrichment against one group of aviation users, in violation of the grant agreement
Santa Monica then tried to evict or keep out larger jets – when the FAA found that a violation of the grant agreement – the city tried to
accomplish the same thing by proposing to shorten runway and put in engineered material arresting system beds to prevent overrun – FAA also found that a violation of the grant
Santa Monica history of issue
July 28, 2016 - Santa
Monica Eyes June 2018 Closure Date for SMO
April 28, 2016 - Settlement
Reached with One Plaintiff in SMO Fight
March 22, 2016 - District Court Hears Santa Monica
Airport Appeal
November 6, 2014 - Measure Granting Voters
Approval of SMO Redevelopment Fails
August 1, 2014 - Santa Monica Airport Proponents File FAA
Part 16 Complaint
July 5, 2014 - Airport Particle Emissions More
Widespread Than Previously Believed
June 24, 2014 - SMO Airport Officials Accused of Conflict of Interest
June 1, 2014 - Emissions Limits Are Santa Monica’s Latest Effort to Curtail SMO Flying
May 6, 2014 - Airport Commission Revisits Emissions Limits at SMO
May 1, 2014 - Santa Monica
City Council Votes On Plan To Restrict Aviation At SMO
February 18, 2014 - FAA Wins Latest Battle over Santa
Monica Airport
February 14, 2014 - Santa Monica Loses Airport Lawsuit In Victory
For GA Proponents
February 11, 2014 - Amicus Brief Seeks Dismissal of
Santa Monica Complaint
February 4, 2014 - Santa Monica Airport Case Headed to
Judge for Hearing
January 14, 2014 - U.S. Government Wants Santa
Monica Airport Suit Tossed
January 11, 2014 - U.S. Government Files Motion to
Dismiss Santa Monica Airport Lawsuit
December 1, 2013 - Precedent May Be Set by Santa
Monica Case
November 5, 2013 - Santa Monica Lawsuit May Determine
Airport’s Fate
October 10, 2013 - Airport2Park Seeks To Close Santa
Monica Airport
June 1, 2013 - SMO Facing Further Efforts at
Airport Closure
May 1, 2013 - AIN Blog: Goodbye SMO
August 9, 2012- Santa Monica Airport
Commission Seeks Daily Ops Limit
June 29, 2011 - Santa Monica Drops Efforts
To Ban Large Aircraft
June 7, 2011 - Santa Monica Drops Efforts To Ban
Large Aircraft at SMO
January 25, 2011 - Court Backs FAA Rejection of SMO Big-jet
Ban
August 3, 2010 - AOPA Opposes Santa Monica
Airport Jet Ban
January 28, 2010 - Touching Bases: Santa Monica
Friends to Testify
January 26, 2010 - SMO foes find new tool in
anti-airport battle
November 24, 2009 - AOPA seeks status in SMO noise
dispute
July 28, 2009 - Santa Monica ban cannot stand,
FAA rules
June 2, 2009 - Santa Monica Large Aircraft Ban
Blocked
May 19, 2009 - Santa Monica Ban Blocked; Van Nuys
Phasing Out?
May 1, 2009 - Santa Monica Airport Part 16
Hearings Held
March 26, 2009 - Santa Monica Airport Part 16 Hearings
Held
October 9, 2008 - SMO brief appeals reversal of
ban
September 2, 2008 - City Brief Says FAA Wrong about SMO
Limits
August 29, 2008 - California Urges FAA To Bar SMO
Jets
August 12, 2008 - California Legislature
Reignites SMO Ban Controversy
July 7, 2008 - FAA: SMO cannot ban
large-airplane operations
May 27, 2008 - SMO Ban Repealed, Pending Further FAA
Action
May 8, 2008 - Touching Bases:
FAA investigating SMO's conformance program
May 6, 2008 - Santa Monica access restrictions
proposed
April 28, 2008 - Santa Monica nixes large jet
ban
April 24, 2008 - FAA: Santa Monica Airport Ban
‘Unlawful’
December 11, 2007 - NBAA Commends FAA Decision on
SMO
November 29, 2007 - Santa Monica Proposes
Category C/D Jet Ban at SMO
September 26, 2007 - FAA, Santa Monica go
head-to-head
August 1, 2007 - Santa Monica Airport dodges
monitoring mandate
July 5, 2007- NATA warns of more SMO
problems
June 5, 2007 - Santa Monica neighbors want
shorter runway
April 17, 2007 - NBAA Sees Santa Monica Landing Fees as
Good News
September 13, 2006 - Engine emissions draw ire
from airport neighbors
British Airways v. Port of New York Authority
Court held that regulation of commercial aviation in the US is a 2-tiered system:
- exclusive control of airspace allocation and use is concentrated at the national level, and state, regional, and local government
entities are preempted from trying to regulate planes in flight
- task of protecting local population from airport noise falls on the government operating the airport – may use property acquisition and
easements, zoning and issuance of reasonable non-arbitrary and non discriminatory rules that do not burden interstate commerce
Country Aviation, Inc. v. Tinicum
Township
Court struck down a local government’s attempt to use its police power to enforce an aviation noise control ordinance against
glider-towing aircraft operating at the privately owned Van Zant Airport
Banner Advertising, Inc. v. City of
Boulder
Colorado Supreme Court struck down the City of Boulder’s attempt to purge the city’s skies of aircraft towing commercial advertising
messages by a provision in the city’s sign code
Gustafson v. City of Lake Angelus
all state and local regulation of the noise of aircraft in flight is preempted by pervasive federal regulations governing airspace
management and aviation noise control
The Power of the Purse, Strings attached: Grant Agreement Constraints
Where the airport proprietor has accepted federal AIP airport planning and improvement grants, the assurances in the grant agreement
further limit the proprietor’s latitude to regulate and restrict the use of the airport
The airport proprietor must agree to keep the airport open for the use and benefit of the public and “all types, kinds, and classes of
aeronautical use on fair and reasonable terms without discrimination between such types, kinds, and classes unless prohibition or limitation of any given type, kind, or class of aeronautical use of
the airport is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public.”
These obligations typically continue for at least 20 years from the date of the last acceptance of federal aid
Courts have uniformly held that only the FAA can sue to enforce these grant agreement assurances – persons denied access to the airport
do not have legal standing to sue as 3rd party beneficiaries
The only available recourse is to file a written complaint of discrimination with the local FAA Airports District Office (ADO)
The ADO is required to investigate all complaints and determine whether the airport proprietor is in compliance with grant agreement
assurances
During the investigation the FAA usually withholds any additional grant funds – if FAA finds breach of grant agreement assurances future
aid will be withheld and US may initiate litigation for specific performance (court order that proprietor comply with grant agreement) or to recover federal funds previously
disbursed
Recently FAA has demonstrated both the will to aggressively enforce grant agreements as needed to protect recipient airports and
admirable flexibility and creativity in working with airport authorities to amend the requirements of grant agreements where needed to foster and promote airport development
The Complication of Political Boundaries
A government may exercise its power of eminent domain and police power only within its geographical boundaries - airport noise and
required clear zones frequently cross political boundaries
In such a case the cooperation of surrounding county or municipal governments must be obtained and nurtured
Through an intergovernmental agreement (IGA) the airport proprietor may obtain the commitment of surrounding governments to use their
police powers – in exchange the surrounding governments may exact a price – seats on airport’s governing board, say in operations, layout and preferential runway use, even a guarantee of public
sector jobs for their residents
Environmental impact
Airport development and its funding is considered a major federal action that may affect the quality of the environment, bringing into
play the National Environmental Policy Act of
1969 (NEPA)
NEPA requires preparation of an environmental impact statement (EIS) for projects that could effect the environment
Airports also require storage capacity for aviation fuels – airport planners must take into account federal underground storage tank
(UST) regulations promulgated under the federal Resource Conservation and Recovery Act (RCRA)
Concern over potential impacts of the global warming trend so clearly depicted in former vice president Gore’s movie An Inconvenient
Truth have focused worldwide attention on the need to drastically reduce the emission of the so-called greenhouse gases attributable to human activities that are deemed largely responsible for the
trend
ICAO
Carbon Offsetting and Reduction
Scheme for International Aviation (CORSIA)
Online tutorial
Some other solutions
The FAA has been very actively involved in the noise problem through regulation, funding, and procedures
Congress’ enactment of the Airport Noise and Capacity Act of
1990 (ANCA) - the first comprehensive federal statute addressing airport noise, required new air transport aircraft designs to be quieter and the phasing out
of older, noisier jet transports or their silencing through engine replacement or “hush kits”
14
CFR Part 77
requires that before constructing anything that could be an obstacle to aircraft, the sponsor must notify the FAA
upon receipt of such a notice, the FAA performs an obstruction analysis to determine the effects of the project on flight operations at
the airport
the FAA then issues 1 of 3 determinations:
- that it has no objection to the proposal
- that it has no objection to the proposal if certain conditions are met
- that the proposal is objectionable because it would adversely affect air navigation
the FAA neither permits nor prohibits the proposed construction leaving that decision to local government having jurisdiction over zoning
and the issuance of building permits in the area
14 CFR Part
91.129(e)(3)
requires that when operating in Class D airspace an airplane approaching to land on a runway served by a visual approach slope indicator
(VASI) or precision approach path indicator (PAPI) shall maintain an attitude at or above the glideslope until a lower altitude is necessary for safe landing
Santa Monica - SMO has installed a PAPI-cam where PAPI is set to a 4 degree glideslope – incorporates a video camera and theodolite that
record and measure the descent profile of every VFR approach to runway 21
Pilot receives a warning letter from the airport manager – second violation is referred to the FAA for enforcement action or
counseling
Teterboro – TEB – 3 strikes and you’re out! – airport manager sends the operator a violation letter – if operator receives 3 violations
in a 2-year period the aircraft is banned from the airport forever
CDA – continuous descent approaches now being widely used for fuel saving and airport area noise reduction – aircraft meeting Required
Navigation Performance standards are able to begin a smooth and stable descent at reduced power from cruise altitude up to 120 miles from the airport and all the way to landing, eliminating the
throttle jockeying necessitated by step down approach procedures
Publicly Owned Airports
The governmental entity that owns the airport can:
- as proprietor, impose curfews and other reasonable limitations on the use of the airport as long as these limitations are not
discriminatory against or unduly burdensome on interstate or foreign commerce and are reasonable
- condemn and purchase land and aviation easements within their jurisdiction in the vicinity of the airport, through the power of eminent
domain and seek federal airport improvement funds to aid financing those purchases
- impose land use zoning and height zoning on land within their jurisdiction in the vicinity of the airport under the police power but may
have to pay just compensation to some landowners if height zoning diminishes their property values
- add soundproofing requirements to building codes applicable to construction in areas impacted by airport noise and pay to soundproof
existing structures in that area and impose passenger facility charges and seek federal airport improvement funds to aid in financing that soundproofing
- enter into Intergovernmental Agreements with other local governments to accomplish items 2 – 4 above beyond the jurisdiction of the
airport-owning government
- close the airport, unless federal airport aid funds have been received, in which case they may have to be repaid, unless a Denver-style
deal can be struck with the FAA, or the FAA may seek court-ordered specific performance to require the owner to keep the airport open to the public
Even the airport proprietor has no control of overflights by aircraft not using the airport
Citizens can file Causby suits in inverse condemnation for taking of an aviation easement over their property or suits for damages in
tort (nuisance) and can recover money damages in the amount by which the value of the property was reduced by virtue of the airport operations but cannot obtain an injunction to close or restrict the
airport
Governments can also use-zone airports out of their jurisdiction
Adjacent governments that do not own the airport can do nothing!
Privately Owned Airports
The private airport owner can:
- purchase adjacent lands or aviation easements over them, but only if the owners are willing to sell – private landowners do not have the
power of eminent domain and therefore cannot condemn and take the property of other private landowners
- impose limitations on use of the airport without limit unless federal airport development funds have been accepted which is now possible
for private airports open to the public where the FAA has designated the airport as a general aviation reliever airport needed to draw general aviation traffic away from a busy airline hub airport in
the area
Citizens can bring suit against the airport owner for nuisance and obtain a judgment for money damages or an injunction compelling the
airport to cease operations
The local government having jurisdiction over the property can preclude construction of an airport by land use zoning or render the
continued operation of an established private airport uneconomical by raising property taxes
Adjacent governments not having jurisdiction over the property can do nothing!
If you are an AOPA member you have free access to the Air Safety Institute courses for WINGS credit. I highly suggest you watch the one
entitled, "ASN Volunteer Orientation" to learn about the demise of general aviation airports around the nation primarily due to what has been discussed in this chapter.
June 15,
2016 - The FAA’s final policy on the non-aeronautical use of airport hangars appears in today’s Federal Register and will take effect on July 1, 2017. The FAA is
issuing the policy to clarify how aviation facilities – including hangars can be used on airports that receive federal funds. The final policy strikes a balance between hangar use for aviation and
non-aviation purposes. The policy ensures hangars are available when there is an aviation need, and if demand is low, allows hangars to be used for non-aviation activities. The FAA recognizes that
non-aviation hangar space rental allows airport sponsors to be economically independent when hangars are not being used to fulfill aviation needs. Airport sponsors must receive approval from the FAA
before hangars can be used for non-aviation purposes. In addition, the policy outlines the type of aircraft that can be built in a hangar, the equipment and items that can be stored in hangars, and
the role of the airport sponsors to ensure tenants pay fair market value for hangar space.
Click here for 81 FR 38906 to read the Policy on the Non-aeronautical Use of Airport
Hangars
NOTE: Airport/FBO
"landlords" had felt compelled by the FAA to impose hangar-storage restrictions based on the so-called Glendale case. Several years ago, after FAA inspections found hangars that contained
automobiles, boats, large recreational vehicles, and the like, the FAA found the city of Glendale, Arizona, in violation of an FAA grant agreement by allowing use of airport hangars for storing such
nonaviation items. This final policy still contains the overarching principle that airports that have accepted federal grants (and certain surplus property airports) may use airport property only for
aeronautical purposes, unless otherwise approved by the FAA. Airport sponsors should continue to manage the use of hangars through an airport leasing program that requires a written lease agreement
or permit, and should continue to take steps to prevent unapproved uses. Overall, the policy is prompted by the realization that so-called 'non-aeronautical' storage or uses in hangars could
interfere with or displace aeronautical use of a hangar. At the same time, the FAA recognizes that storage for some items in a hangar may not have a significant effect on the aeronautical utility of
the hangar. The final policy attempts to balance the two. The policy expressly permits "maintenance, repair, or refurbishment of aircraft," although it continues to bar the indefinite storage of
nonoperational aircraft. It permits "storage of aircraft handling equipment, e.g., towbars, glider tow equipment, workbenches, and tools and materials used in the servicing, maintenance, and repair
or outfitting of aircraft." In general, "provided the hangar is used primarily for aeronautical purposes [housing an aircraft], an airport sponsor may permit nonaeronautical items to be stored in
hangars provided the items do not interfere with the aeronautical use of the hangar." A vehicle parked in the hangar while the vehicle owner is using the aircraft is permitted. The policy allows
typical pilot resting facilities and aircrew quarters, although a hangar may not be used as a residence. And of importance to the homebuilt community, the policy now more expansively permits
noncommercial construction of amateur-built or kit-built aircraft in a hangar, including the final assembly of aircraft under construction. With respect to the many privately constructed and owned
hangars on an airport ground lease, the form of property interest - be it a leasehold or ownership of a hangar - does not change the applicability of the policy. However, the policy does not apply to
privately owned facilities located off the airport. This final policy technically does not apply to airports that have never received federal Airport Improvement Program grants or are not restricted
by surplus property conveyances, but the policy likely will continue to be utilized by virtually all airports offering hangar facilities.
D.C. Circuit Rules in Favor of Petitioners Challenging Flight Procedures for Phoenix Sky Harbor International Airport
On August 29, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued an
opinion and order vacating FAA’s September 18, 2014, order implementing new flight routes and
procedures at Phoenix Sky Harbor International Airport. City of Phoenix v. Huerta, No. 15-1158, 2017 WL 3708094 (D.C. Cir.).
Two petitions for review were filed in the D.C. Circuit challenging FAA’s 2014 implementation of area navigation (RNAV) departure procedures in the Phoenix
airspace. The City of Phoenix, the owner of Phoenix Sky Harbor International Airport, filed the first petition on June 1, 2015, and a group of Phoenix historic neighborhood associations filed a
second, similar petition on July 31. On FAA’s motion, the court consolidated the two
cases.
FAA implemented the Phoenix RNAV procedures pursuant to the expedited environmental review
mandated by the 2012 FAA Modernization and Reform Act, section 213(c)(1). Before implementing the procedures, FAA conducted an environmental analysis as required by NEPA and determined that no
extraordinary circumstances existed that would preclude expedited review. However, residents of some Phoenix residential areas filed noise
complaints. Although the FAA had consulted with the City of Phoenix Aviation Department during development of the procedures, the City raised new objections and demanded that the FAA return to the
old routes.
In its decision, the court rejected the FAA’s argument that the petition for review was untimely, finding that while the petitioners had missed the 60-day deadline for seeking review, the petitioners had
reasonable grounds for their delay. On the merits, the Court found that the FAA violated the National Historic Preservation Act by failing to notify all consulting parties of its determination that
no historic structures would be adversely affected by noise. In addition, the Court found that the FAA violated NEPA because FAA did not have sufficient support for its finding that the procedures
were eligible for legislatively- created expedited the NEPA review. The court based this finding on its determination that FAA did not involve or notify local citizens and community leaders about the
proposed flight path changes and therefore did not have sufficient evidence to determine whether extraordinary circumstances existed that would preclude the use of the expedited
review.
Finally, the court found that the FAA did not fulfill its duty under Section 4(f) of the
Transportation Act to consult with the City in assessing whether the new routes would substantially impair the City’s parks and historic sites, and also found that the FAA did not gather enough information to conclude that the routes would not substantially impair these protected areas.
The Court vacated the FAA’s September 18, 2014, order implementing the procedures and remanded the
matter to FAA for further proceedings. Judge Sentelle dissented from the opinion, arguing that petitioners had not demonstrated “reasonable grounds” under prior D.C. Circuit precedent to excuse their late filing. FAA is
considering its options to seek a panel rehearing or a rehearing en banc.
Parties Reach Agreement Regarding Flight Procedures for Phoenix
Sky Harbor International Airport
The City of Phoenix, the owner of Phoenix Sky Harbor International
Airport, and a group of Phoenix historic neighborhood associations filed petitions challenging FAA’s 2014 implementation of area
navigation (RNAV) departure procedures in the Phoenix airspace. City of
Phoenix v. Huerta, No. 15-1158 (D.C. Cir.). FAA implemented the Phoenix RNAV procedures pursuant to the expedited environmental review mandated by the 2012 FAA Modernization
and Reform Act, section 213(c)(1). Before implementing the procedures, FAA conducted an environmental analysis as required by NEPA and determined that no
extraordinary circumstances existed that would preclude expedited review. However, residents of some Phoenix residential areas filed noise complaints. Although FAA consulted
with the City of Phoenix Aviation Department during development of the procedures, the City raised new objections and demanded that FAA return to the old routes.
On August 29, 2017, the U.S. Court of Appeals for the D.C. Circuit
issued an opinion and order vacating FAA’s September 18, 2014 order implementing new flight routes and procedures at Phoenix
Sky Harbor International Airport. The Court held that (1) Petitioners
had reasonable grounds for their delay in filing and a decision on the merits is appropriate, (2) FAA did not fulfill its obligation under
the National Historic Preservation Act to consult with certain
stakeholders in the affected area, (3) FAA’s finding that new routes were not likely to be highly controversial on environmental grounds was
arbitrary and capricious, (4) FAA’s consultation with the city was
arbitrarily confined and insufficient under the Transportation Act, and (5) it was unreasonable for FAA to rely on guidelines in 49 CFR Part 150 that apply to historic sites
where a quiet setting is not a generally recognized purpose and attribute of the historic properties.
FAA and petitioners have reached an agreement that provides for noise
relief to Petitioners in two steps: first, near-term changes to west-flow departures; and, second, the development of performance based
navigation procedures with the intent of approximating, to the extent
practicable, the pre-September 2014 flight tracks. On November 30, 2017, the parties filed a joint motion with the D.C. Circuit to modify the order consistent with the agreement.
The Court amended its order on February 7, 2018, applying it only to departure procedures at Phoenix and delaying the issuance of the mandate until June 15,
2018.
FAA has begun the process of developing new departure procedures to
comply with the first step of the agreement.
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