Sarah Nilsson, JD, PhD, MAS
Sarah Nilsson, JD, PhD, MAS


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

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



- Power of eminent domain

United States v. Causby

First aviation case to be decided by US Supreme Court – case of first impression

Continuous stream of 4-engine bombers spaced a minute or two apart roared over the Causby’s property day and night

Landing approach brought them as low as 30 feet over the Causbys’ rooftop

At night the landing lights illuminated the Causbys’ bedroom brighter than day

Causbys’ were farmer of chickens in North Carolina

Brain of chicken is programmed to react to anything flying overhead

Chickens flew into frenzy at the noise and 150 of them crashed around in their coops

Judges having no precedent referred back to centuries-old facet of common law – ad coelum (to the sky) doctrine (cujus est solum, ejus est usque ad coelum), which states that a person who owns a parcel of land owns not only the surface but also the airspace above it

Relying upon the commerce clause and Congress’s pronouncements in the Civil Aeronautics Act of 1938 (precursor to Federal Aviation Act of 1958), the Court held that navigable airspace is a public highway within the public domain and that at least as it would affect the passage of aircraft, the ad coelom doctrine has no place in the modern world

But in this situation, the flights by aircraft owned and operated by the federal government were “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land” and the value of the land was diminished as a result – so the Court held that these air operations constituted a taking of private property (in the nature of an aviation easement) for a public use so that the Constitution required the federal government to pay the landowner just compensation for that taking

In an ordinary condemnation action, the government initiates suit to take property and determine price

Here in Causby the farmers initiated suit thus making it an inverse condemnation suit



Petitioner: United States

Respondent: Thomas Lee Causby et al.

Citation: 328 US 256 (1946)

Facts of the Case:  Thomas Lee Causby owned a chicken farm outside of Greensboro, North Carolina. The farm was located near an airport used regularly by the United States military. According to Causby, noise from the airport regularly frightened the animals on his farm, resulting in the deaths of several chickens. The problem became so severe that Causby was forced to abandon his business. Under an ancient doctrine of the common law, land ownership extended to the space above and below the earth. Using this doctrine as a basis, Causby sued the United States, arguing that he owned the airspace above his farm. By flying planes in this airspace, he argued, the government had confiscated his property without compensation, thus violating the Takings Clause of the Fifth Amendment. The United States Court of Claims accepted Causby's argument, and ordered the government to pay compensation.

Issue: Did the flying of planes by the United States military over Causby's farm constitute a violation of the Takings Clause of the Fifth Amendment?

Reasoning: Yes, to an extent. In a 5-2 opinion authored by Justice William O. Douglas, the Court concluded that the ancient common law doctrine "has no place in the modern world." Justice Douglas noted that, were the Court to accept the doctrine as valid, "every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea." However, while the Court rejected the unlimited reach above and below the earth described in the common law doctrine, it also ruled that, "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere." Without defining a specific limit, the Court stated that flights over the land could be considered a violation of the Takings Clause if they led to "a direct and immediate interference with the enjoyment and use of the land." Given the damage caused by the particularly low, frequent flights over his farm, the Court determined that the government had violated Causby's rights, and he was entitled to compensation. (Chief Justice Harlan Fiske Stone died on April 22; Justice Robert H. Jackson took no part in the consideration or decision in the case, leaving the court with 7 members.)


Griggs v. Allegheny County

Griggs’ home near Greater Pittsburgh Airport

County extended one of the runways almost to Griggs’ property line so that airliners on approach to landing passed as low as 11 feet over Griggs’ chimney

Noise and vibration caused plaster walls and ceilings to crack and items to fall off shelves and china cabinets

The Griggs filed an inverse condemnation suit

Like in Causby, the court held that the county, as operator of this public airport, had taken an aviation easement over the Griggs’ property through inverse condemnation requiring the county to pay compensation for the taking, measured by the appraised fair market value of the property before and after the runway extension

Additionally, airlines that were actually generating the noise had NO LIABILITY to landowners


- 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


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:

  1. Courts of Law – judges trained in common law applied the law – entered judgments for money damages
  2. 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


Lockheed Air Terminal, Inc. v. City of Burbank

Arose out of attempts by the Cities of Burbank and Glendale to regulate the noise of aircraft coming and going from an airport privately owned and operated by Lockheed Aircraft Corp.

Footnote 14: a governmental entity that owns and operates an airport may be legally able, acting as proprietor, to deny use of the airport to aircraft on the basis of noise considerations, as long as the exclusion does not discriminate against aircraft traveling in interstate or foreign commerce


City of Santa Monica as proprietor of its municipal airport adopted 5 more restrictions in form of airport use regulations:

  1. Curfew: engine starts and takeoffs by any aircraft were prohibited between 11pm and 6am
  2. Fixed wing flight training: touch-and-go landings, stop-and-go landings and low approaches were prohibited on weekends and holidays
  3. Helicopter flight training: prohibited at all times
  4. Noise limit: aircraft operations exceeding a 100-decibel single0event noise level (SENEL) were prohibited (and noise meters were installed off both runway ends)
  5. 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:

  1. if the regulation does not affect interstate commerce, it is constitutionally valid so move to next question
  2. if the governmental entity acted within its jurisdiction and the regulation is reasonable, it is enforceable so move to next question
  3. 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



Adobe Acrobat document [119.2 KB]
The SMO Saga.pptx
Microsoft Power Point presentation [14.2 MB]


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:

  1. 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
  2. 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



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:

  1. that it has no objection to the proposal
  2. that it has no objection to the proposal if certain conditions are met
  3. 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:

  1. 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
  2. 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
  3. 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
  4. 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
  5. enter into Intergovernmental Agreements with other local governments to accomplish items 2 – 4 above beyond the jurisdiction of the airport-owning government
  6. 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:

  1. 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
  2. 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.

Adobe Acrobat document [3.8 MB]
Air Quality_ An Emerging Issue in the Ai[...]
Adobe Acrobat document [417.2 KB]

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. 


Thank you Zac for sharing his personal crop dusting videos below

Thank you Jordan for sharing the YouTube video below - I can't help but wonder how the deer must be traumatized!! 

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.



Case 56: Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)

1. What is the function and scope of operations of the Port Authority of New York and New Jersey?

2. How many people and how many operations are served by the airports at the subject of the litigation?

3. Explain in your own words what the regulation at issue is designed to do, where it applies, and how it was applied in this case?

4. What is the “traditional public forum” doctrine? Does it apply here?

5. Identify the specific drawbacks the court equates with face-to-face solicitation inside the airport terminal? Is this persuasive?


Case 57: City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973)

1. Explain what was outlawed by the ordinance adopted by the City Council of Burbank, California. Did the district court determine the law to be constitutional or unconstitutional—on what ground?

2. What findings did the district court make about the “imposition of curfew ordinances on a nationwide basis”?

3. How does the court reconcile the potential conflict between state police powers respecting noise (which the court describes as “deep-seated”) and the provisions of the Federal Aviation Act, which “requires a delicate balance between safety and efficiency.”? In other words, does state law preempt federal law (or vice-versa) and why?

4. The dissenting opinion posits that the laws at issue intended to maintain the “status quo between federal and local authorities.” What evidence supports this argument? Is it persuasive?

5. The dissenting opinion acknowledges that the FAA and EPA “have exclusive authority to reduce noise by promulgating regulations and implementing standards at one or several of the causes of the level of noise,” but that “local government bodies are not … foreclosed from dealing with the noise problem by every other conceivable method.” Explain.


Case 58: Goodspeed Airport, LLC v. East Haddam Inland Wetlands and Watercourses Comm’n, 681 F. Supp. 2d 182 (D. Conn. 2010)

1. What situation is preventing Goodspeed Airport, LLC from simply cutting down the trees apparently posing “obstructions to air navigation”?

2. How is a small, privately-owned airport for public use defined under 14 C.F.R. § 77.2?

3. Did the obstructing trees at issue actually pose a threat to continued operation of the airport?

4. Assuming the trees at issue are “obstructions,” can the FAA require that they be altered or removed? Explain.

5. Are the state laws at issue preempted by federal law? Explain the court’s reasoning in detail.


Case 59: United States v. Causby, 328 U.S. 256 (1946)

1. Prior to reading United States v. Causby, review the meaning of the following legal terms: (a) eminent domain; (b) inverse condemnation; and (c) avigational easement.

2. Is the defendant in United States v. Causby a private or public entity? What difference does it make—practically and legally?

3. Under whose authority is the national air space according to the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938?

4. The court abandons the ancient and common law doctrine that ownership of land extended to the periphery of the universe, concluding instead that “[t]he airspace, apart from the immediate reaches above the land, is part of the public domain.” After United States v. Causby was decided, at what altitude did the “immediate reaches above the land” extend to?

5. What is the principle objection raised by the dissent? Is it persuasive?


Case 60: Griggs v. County of Allegheny, 369 U.S. 84 (1962)

1. What is an “air easement”?

2. As between the owner and operator of the airplanes causing the noise at issue in Griggs v. County of Allegheny, and the owner and operator of the airport, which party was responsible for the “taking” of an air easement?

3. How does Justice Black address the issue of fairness in his dissent?

4. As mentioned in Justice Black’s dissenting opinion, Congress refined the term “navigable airspace” in 1958. How does it differ from the definition of the same term as used in United States v. Causby, and what is the significance of that change for takings cases generally?

5. Explain the difference between Justice Black’s dissenting opinion in Griggs v. County and his dissent in United States v. Causby?



Contact Me

Sarah Nilsson, J.D., Ph.D., MAS


602 561 8665


You can also fill out my 

online form.

Get Social with Me

View Sarah J. Nilsson's profile on LinkedIn



Legal Disclaimer

The information on this website is for EDUCATIONAL purposes only and DOES NOT constitute legal advice. 

While the author of this website is an attorney, she is not YOUR attorney, nor are you her client, until you enter into a written agreement with Nilsson Law, PLLC to provide legal services.




Steward of 

Little Free Library

Print Print | Sitemap
© Sarah Nilsson