In County of Westchester v. Commissioner of Transportation, 9 F.3d 242 (2nd Cir. 1993) cert. denied 114 S.Ct. 2102 (1994), Connecticut landowners whose property was near the Westchester County Airport in Westchester, New York refused to allow county to trim trees on their property which had grown into the mandatory "clear zone" for the runway. As a result, the usable length of the runway was shortened by 1300 feet and larger airplanes could not use the runway.
The county sued claiming, among other things, that the county (a) had an aviation easement which entitled the county to use the airspace above the landowners' property; and (b) a clearance easement giving the county the right to cut down the obstructing trees.
The issue was certified to the Supreme Court of Connecticut which held that the county was not entitled to any easement over the landowner's property because in order for the county to obtain an easement their use of the property must be adverse. Since the landowners do not have any right of action against the airport because federal law preempts any injunction against the use of aircraft in United States airspace, the use of the airspace was not adverse.
In Gustafson v. City of Lake Angelus, 856 F. Supp. 320 (E.D. Mich. 1993), plaintiff landed a seaplane outside of his waterfront home on Lake Angelus in Michigan and was advised by local authorities that the landing of seaplanes on the lake was prohibited by city zoning ordinances.
Plaintiff challenged the ordinances as being preempted by the Federal Aviation Act (Act). The court found for the plaintiff holding that the Act exclusively regulates the airspace above inland waters. Thus, the zoning ordinances were preempted by the Act.
In Banner Advertising, Inc. v. People, 868 P.2d 1077 (Colo. 1994), Banner Advertising was found guilty of violating a city ordinance which prohibited commercial sign towing by aircraft although Banner had received authorization from the FAA to conduct commercial banner towing.
The Supreme Court of Colorado held that the ordinance was preempted by federal law.
In Maryland Aviation Administration v. Newsome, 637 A.2d 469 (Md. Ct. Spec. App.) cert. granted 643 A.2d 441 (1994), a developer requested a variance from zoning ordinance to build a single-family housing complex withing the Baltimore-Washington International Airport (BWI) Noise Zone. Maryland's Department of Transportation Board of Airport Zoning Appeals denied the developer's request and developer appealed.
The board's denial of the variance was based on the location of the property within the BWI Noise Zone, an estimate that airport noise was not expected to decrease in the area, and that the population density in the proposed area would be significantly greater than in its surroundings.
The court of special appeals found that the board exceeded its discretion and considered factors other than airport noise in denying the variance. The board's denial of the variance was arbitrary and capricious since the regulations did not authorize the board to regulate population densities within the BWI Noise Zone.
In Sharp v. Howard County Board of Appeals, 632 A.2d 248 (Md. Ct. Spec. App. 1993), property owners challenged the county zoning board's decision to grant a special exception allowing property to be used as an airstrip.
The court rejected the challenge holding that the zoning board acted within its discretion in granting the exception. In granting the exception, the zoning board found that the use of the land as an airstrip did not cause any adverse effects above and beyond those inherently associated with such excepted uses, irrespective of their location within the county.
In rejecting the challenge, the court noted that the airstrip was well-maintained, that the exception only allowed for three aircraft to be based at the airstrip and that the airstrip prohibited pilots from flying over three local schools.
In State v. Metropolitan Airports Commission, 520 N.W.2d 388 (Minn. 1994), a public interest group sought to enforce Minnesota Pollution Control Agency notice regulations against Minneapolis-St. Paul airport.
The Minnesota Supreme Court ruled that federal law regarding the operation of airports preempts the enforcement of state and municipal noise pollution regulations.
In Malone Parachute Club, Inc. v. Town of Malone, 610 N.Y.S.2d 686 (N.Y. 1994), a skydiving club unsuccessfully challenged town resolution prohibiting skydivers from landing on public airport property without first obtaining liability insurance naming the town as an additional insured. The club argued that since the airport received federal funds a FAA regulation required the airport to be available for all aeronautical users.
The court held that federal law did not preempt the prohibition, however, noting an exception to the general preemption rule which allows municipalities to enact regulations in their capacity as airport proprietors, so long as the regulations do not conflict with existing federal statutes or regulations. The court found that the insurance requirement did not conflict with the FAA regulation because the regulation allowed reasonable limitations, such as the insurance requirement, to be placed on airport use.
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