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1 Jocelyn K. Waite, Achieving Airport-Compatible Land Uses and Minimizing Hazardous Obstructions in Navigable Airspace 1 (2012)

handle is hein.scsl/achiairpom0001 and id is 1 raw text is: Responsible Senior Program Officer: Gwen Chisholm Smith Legal Research Digest 14 ACHIEVING AIRPORT-COMPATIBLE LAND USES AND MINIMIZING HAZARDOUS OBSTRUCTIONS IN NAVIGABLE AIRSPACE This report was prepared under ACRP Project 11-01, Legal Aspects of Airport Programs, for which the Transportation Research Board (TRB) is the agency coordinating the research. The report was prepared by Jocelyn K. Waite, Waite & Associates, Reno, Nevada. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. Background There are over 4,000 airports in the country and most of these airports are owned by governments. A 2003 survey conducted by Airports Council International-North Amer- ica concluded that city ownership accounts for 38 percent, followed by regional airports at 25 percent, single county at 17 percent, and multi-jurisdictional at 9 percent. Pri- mary legal services to these airports are, in most cases, provided by municipal, county, and state attorneys. Reports and summaries produced by the Airport Con- tinuing Legal Studies Project and published as ACRP Legal Research Digests are developed to assist these attorneys seeking to deal with the myriad of legal problems encoun- tered during airport development and operations. Such sub- stantive areas as eminent domain, environmental concerns, leasing, contracting, security, insurance, civil rights, and tort liability present cutting-edge legal issues where re- search is useful and indeed needed. Airport legal research, when conducted through the TRB's legal studies process, either collects primary data that usually are not available elsewhere or performs analysis of existing literature. Applications Federal law currently requires airport owners to provide for the safe overflight of property surrounding airports, as well as to restrict surrounding land uses to those that are airport-compatible. Potential tools for ensuring compati- ble land include comprehensive (or master) land-use plan- ning, zoning, building and site design, and avigation and clearance easements. An airport sponsor's deployment of these tools is based on state and local, not federal, law. Airport attorneys must not only be cognizant of land-use compatibility requirements, but must be familiar with the range of options for complying with them and aware of the legal implications of implementing the various op- tions. For example, in accordance with its exclusive juris- diction over the navigable airspace of the United States, the Federal Aviation Administration (FAA) promulgated 14 C.F.R. Part 77, which places responsibility on persons erecting structures in the path of airways to give notice to the FAA of intent to build, thus giving the FAA the oppor- tunity to review and evaluate whether the structure would constitute a hazard to air navigation. While the FAA determination has no regulatory effect, and local governments have the option to restrict or not to restrict the structure, it may influence whether states will grant necessary permits and insurance companies will in- sure the structure. This report discusses airport-compatible land-use re- quirements, the legal issues related to achieving airport- compatible land use, and legal issues particular to elimi- nating hazardous obstructions to airspace. The report concludes by reviewing the major legal issues of concern in achieving airport-compatible land use. While general legal principles relevant to airport land use are well established, they are often applied on a case- by-case basis, particularly in the context of regulatory tak- ings and inverse condemnation. This ad hoc analysis intro- duces, if not an element of unpredictability, at least some variation in the law by jurisdiction. The need for greater predictability highlights the significance of including air- port zoning as part of comprehensive land-use planning. This report should be helpful to airport administrators, attorneys, board members, financial officers, community members in the vicinity of airports, realtors, and city and county zoning officials. TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES

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