By Bill Dunn
So far, we’ve discussed a number of components of airport noise and compatible land use. So now, in this installment, we’ll touch on enforcement of compatible land use requirements. At the end of this column, you will find some additional resources that you may wish to review for additional information on this topic.
Enforcement of airport land use protection provisions is often emotionally charged, politically influenced and controversial. Some cases have resulted in legal action being taken against the airport or airport sponsoring government agency. Court rulings have been mixed; in some cases, viewing airport land use compatibility restrictions as a taking of property without proper compensation to the property owner. For example, Clark County, Nevada had airport compatibility zoning requirements in ordinance for North Las Vegas and Las Vegas International Airports, owned by the county. A developer made application to develop a high-rise casino property one mile south of the airport and on the centerline of the runway at Las Vegas International Airport. The county denied permission. The developer filed suit against the county (McCarren International Airport v. Sisolak) and prevailed in lower state court – which viewed the county’s action as a illegal taking of property. The County appealed to the Nevada Supreme Court – which upheld. An appeal by County to the U.S. Supreme Court was rejected by the court. Sisolak was awarded $17 million. Other land use rights advocates have seized this ruling as an argument against protective airport land use zoning in other states.
California is often pointed to as having excellent airport land use provisions codified in state statute . The State requires most counties to create Airport Land Use Commissions (ALUC). These commissions then create and adopt Comprehensive Airport Land Use Plans (CLUPs). Development projects within two miles of the public use airport are submitted to the ALUC for a determination as to whether the proposed project is compatible or non-compatible with the airport’s operation. Significant planning resources are provided to the ALUC and other political agencies by the State of California within the state’s Airport Planning Handbook. While this sounds like a good process, the law also provides an “override” provision. The local zoning authority may override the determination of the ALUC by a “super majority” of the elected body and state the override is due to a significant “finding of fact” without any real definition of what they actually mean although a written record is required.
For example, in 2012, the City of Tehachapi, CA approved the construction of a hotel in an airport safety zone that restricted high-occupancy structures as defined in the airport’s CLUP. While the California law is not perfect, it’s better than not having any law on the books. However, real estate developers have become educated in ways to circumvent the ALUC politically.
Research conducted on enforcement of airport land compatible land use requirements has ultimately shown that there is an extensively broad and inconsistent approach applied by states, counties and other government agencies to airport land use planning. There does not appear to be a unified approach to the subject matter with numerous legislative models currently in place. Additionally, it appears that the majority of states lack airport land use protection laws in the form of state statutes. And in some cases where state laws do exist, the state agency responsible for enforcement of the law refuses to actually take action to enforce the state requirements.
A number of studies and legal analyses have been completed over the years regarding airport land use efforts. Two noteworthy studies were funded by Partnership for AiR Transportation Noise and Emissions Reduction, an FAA/NASA/Transport Canada Center for Excellence. A 2008 study titled – Land Use Management and Airport Controls and a 2007 study titled Land Use Management and Airport Controls, Trends and indicators of incompatible land use .
After a detailed review and analysis of available information, I found that the Airport Cooperative Research Program (ACRP), funded by the FAA and managed by the Transportation Research Board (TRB), a unit of the National Academies of Science, published a significant number of digests and reports that cover the topic at hand. The research was prepared and conducted through a nationwide prism and includes a compilation of detailed information from various organizations in one place. Additionally, since ACRP and TRB are tied to the National Academies, additional credibility is brought to the research and data presented in these digests and reports.
If you would like additional information, or have questions or comments, please contact me.
Nevada Supreme Court case 137 P.3d 1110 (2006)