Federal Regulation of Aircraft Noise, the Legal Rights of Airport Neighbors, and Legal Aspects of Compatible Land Use

Authors

• Lyman M. Tondel - Cleary, Gottlieb, Steen & Hamilton

Topic

• Technical review
• Planning / scheduling
• Legislation
• Regulations
• Noise
• Airports
• Aircraft

Citation

Also In

References

1. Alleviation of Jet Aircraft Noise Near Airports, U.S. Office of Science and Technology, March 1966 at 117. The paper in question, originally prepared in October, 1965, was updated and published in 32 J. Air Law and Commerce 387 (1966) and in Hildebrand (see note 2, infra).
2. Major secondary authorities since those listed in footnote 28 to the 1966 Paper include Hildebrand, Noise Pollution and the Law (William S. Hein & Co. 1970), and Huard, Some Legal Concerns About the SST, 9 Santa Clara Lawyer 189 (1969). Bibliographies include Aircraft Noise and Sonic Boom, Selected References, FAA Bibliographic List No. 13 (October, 1966) and 115 Cong. Rec. 21861 (1969).
3. 1970 Air Transport Facts & Figures, the annual report of the Air Transport Association of America at 41. The statistics in numbered paragraphs 2 to 5, inclusive, are from pages 28, 43 and 44 of the same source.
4. Scheduled airlines had only 12 helicopters as of December 31, 1969, while general aviation had an estimated 2800. Id. at 46 and 43, respectively.
5. See, e.g., NASA SP-220, NASA Acoustically Treated Nacelle Program, Conference at Langley Research Center, Hampton, Virginia, October 15, 1969; FAA-NO-70-11, Economic Impact of Implementing Acoustically Treated Nacelle and Dust Configurations Applicable to Low Bypass Turbofan Engines, Rohr Corporation, July, 1970; for a summary of all subsonic noise and sonic boom research and development programs for United States Fiscal Years 1969 and 1970 see First Federal Aircraft Noise Abatement Plan, FY 1969-70, published by the Interagency Aircraft Noise Abatement Program, November, 1969. For a discussion of federal research efforts before 1965, see Alleviation of Jet Aircraft Noise Near Airports, note 1, supra, at 35, 43.
6. 1970 Air Transport Facts & Figures, note 3, supra, at 23; report on Boeing 747 noise level in N.Y. Times, March 2, 1969, at 82, col. 1.
7. Sonic boom is quite a different phenomenon and not within the scope of this paper. For studies of the effect of aircraft noise on health and hearing see, inter alia, Report of the U.S. Delegation to the International Civil Aviation Organization (“ICAO”) 1969 month-long Special Meeting on Aircraft Noise in the vicinity of Aerodromes (herein called the “Montreal Conference”), November 25 - December 17, 1969, and footnote 3 to the 1966 Paper. The recommendation at Montreal was: “That a) it be acknowledged that aircraft noise exposure in the vicinity of aerodromes has not been acknowledged as being harmful to health or hearing and that evidence which might so identify it would be unlikely to come from other than long-range studies which, to the knowledge of the Meeting, have not yet been conducted; and therefore b) selected States and International Organizations, including the World Health Organization, should be requested to actively pursue, and collaborate in, medical and psychological research on the effects on man of long-term exposure to noise such as occurs in the vicinity of aerodromes.” Report of the U.S. Delegation to the Secretary of State, at 9. With respect to aircraft emissions, see Nature and Control of Aircraft Engine Exhaust Emissions, S. Doc. No. 91-9, 91st Cong., 1st Sess. 3 (1968).
8. See materials cited in note 7, supra. The most famous farm animal case is United States v. Causby, 328 U.S. 256 (1946).
9. Mere annoyance has generally been held by the courts to be an insufficient basis for recovery of damages. City of Los Angeles v. Mattson, 10 Av. Cas. 17,632, 17,635 (Cal. Super. Ct. 1967); Cunliffe v. County of Monroe, N.Y. Sup. Ct., Monroe Co., February 26, 1970 (unreported). The only jet noise case discovered that is even arguably an exception is Bloxom v. Lockheed Aircraft Service Corp., No. 13037, W.D. La., April 23, 1970 (unreported), where the decision was based on the Louisiana Civil Code. Plaintiffs recovered the modest sum of $2,000 for “damage” resulting from a “nuisance in fact” based on “mental pain and suffering, anxiety and annoyance”, but jets in flight were not involved. The noises emanated from a jet aircraft engine test facility that operated “at all hours of the day and night, including weekends”. After three and one-half years of ownership the plaintiffs sold the property for $43,500 (reserving a half interest in mineral rights) although its “final cost basis” was only $25,612.35.
10. See Report of an International Conference on the Reduction of Noise and Disturbance Caused by Civil Aircraft, Lancaster House, London, November 22-30, 1966. Her Majesty's Stationary Office, 1967.
11. 49 U.S.C. § 1431.
12. 14 C.F.R. 36.1-1581, 34 Fed. Reg. 18355 (1969), corrected by 34 Fed. Reg. 19025 (1969).
13. 35 Fed. Reg. 6189 (April 16, 1970). This paper does not deal with sonic boom; hence statements made and data used do not reflect that phenomenon or its consequences.
14. 35 Fed. Reg. 12555 (August 6, 1970).
15. 35 Fed. Reg. 16980 (November 4, 1970).
16. 49 U.S.C. § 1716(d).
17. 35 Fed. Reg. 10582 (June 30, 1970); see note 38, infra.
18. Note 7, supra.
19. The building of an airport is typically accompanied by the construction of a highway providing access to nearby cities. The combination of airport and highway tends to make the area served more attractive than unimproved areas lacking such transportation facilities. For example, a study by Arthur D. Little, Inc. indicates that property values near airports have been increasing at an annual rate of between 7 and 30 percent. Arthur D. Little, Inc., Airport Land Needs 2, 16 (Communication Service Corp. ed. 1966).
20. McClure Paul T., Indicators of the Effect of Jet Noise in the Value of Real Estate, Rand Corporation, No. P-4117, 1969 at 18. The author's market survey showed that residential property appreciated to a greater extent within the noisy area closer to the airport than in a comparable quieter area. However, based upon questionable assumptions on the cost of soundproofing and avigation easements, he argued that jet noise reduced residential property values. Id. at 13, 34, respectively.
21. Note 7, supra.
22. 49 U.S.C. § 1303.
23. H.R. Rep. No. 2360, 85th Cong., 2nd Sess. 3 (1958); S. Rep. No. 1811, 85th Cong., 2nd Sess. (1958).
24. American Airlines v. Town of Hempstead, 272 F. Supp. 226, 230 (E.D.N.Y. 1967), aff'd 398 F.2d 369 (2d Cir. 1968), cert. den. 393 U.S. 1017 (1969).
25. 49 U.S.C. § 1348(c).
26. 25 Fed. Reg. 8538 (September 3, 1960) concerning Idlewild (Kennedy); 25 Fed. Reg. 10343 (October 24, 1960) concerning Washington National.
27. 14 C.F.R. 91.87(g) (1967).
28. 49 U.S.C. § 1471; 14 C.F.R. 13.15, 13.17, 13.19 (1970).
29. 35 Fed. Reg. 5264 (March 28, 1970).
30. 14 C.F.R. 93.121-31. The high density rules were recently extended for another year at LaGuardia, Kennedy, O'Hare, and Washington National Airports, but were eliminated as to Newark. 35 Fed. Reg. 16591 (October 24, 1970).
31. Aircraft Owners & Pilots Ass'n v. Port Authority of New York, 305 F. Supp. 93 (E.D.N.Y. 1969); Aircraft Owners & Pilots Ass'n v. Volpe, Civil Action No. 927-69 (D.D.C. 1969, unreported).
32. 49 U.S.C. § 1110.
33. 49 U.S.C. § 1431. See note 5, supra, for references to the principal projects.
34. This was recognized, at least by inference, in the brief filed by the United States Government in the United States Supreme Court in American Airlines v. Town of Hempstead, note 24, supra, for Respondent FAA, in opposition to a petition for a writ of certiorari, where it said in a footnote (p. 6): “Legislation having a direct bearing upon the issue of preemption in the area of airplane noise control was enacted by Congress subsequent to the decisions of the courts below . . . . This legislation, among other things, requires the Administrator of the Federal Aviation Agency to prescribe rules and regulations for the control and abatement of aircraft noise.” The only known court decisions to mention this amendment to date are Palisades Citizens Ass'n v. CAB, 420 F.2d 188, 192 (D.C. Cir. 1969); Lockheed Air Terminal v. City of Burbank, Memo. Dec. No. 70-1075-EC (C.D. Cal., September 24, 1970, unreported), and neither commented on its impact in this respect.
35. Note 12, supra.
36. 34 Fed. Reg. 18355 (1969).
37. 35 Fed. Reg. 16980.
38. In addition to the Airport and Airway Development Act of 1970, 49 U.S.C. § 1711, discussed in the text, Section 4(a) of the Department of Transportation Act of 1966, 49 U.S.C. § 1651, provides that the Secretary, in carrying out the purposes of that Act, shall “promote and undertake research and development relating to transportation, including noise abatement, with particular attention to aircraft noise …” The National Environmental Policy Act of 1969, 42 U.S.C. § 4321, was enacted for the purpose of promoting efforts to prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man. The Act states that it is the continuing responsibility of the federal government to use all practicable means to improve and coordinate federal functions and programs to carry out this policy. Among other agencies, the CAB adopted a policy, effective June 25, 1970, to exercise its powers in a manner to encourage participation, in accordance with its Rules of Practice, by appropriate federal, state and local agencies, and by other interested persons, in every proceeding which might result in a major federal action significantly affecting the quality of the human environment. Note 17, supra.
39. 49 U.S.C. § 1718(4).
40. Note 1, supra.
41. See footnotes 34-36 to the 1966 Paper, which cite the seven cases in the period 1932-1952 in which injunctions prohibited or restricted the operations of privately owned or operated airports. To the date of that paper (1966), the operations of no publicly owned and publicly operated airport in the United States had been suspended or restricted by court action.
42. See, e.g., Greater Westchester Homeowners Ass'n v. City of Los Angeles and Inglewood Residents' Protective Ass'n v. City of Los Angeles, both pending in California Superior Court, Los Angeles County. A class action for inverse condemnation, and asking only damages, was dismissed in Alevizos v. Metropolitan Airports Commission of Minneapolis and Saint Paul, No. 668891 (Minn. Dist. Ct., Hennepin County, October 14, 1970, unreported), but the court there stated in dicta: “The M.A.C. as an international airport cannot, without the consent of the federal authorities, limit the use of the airport for landings or take-offs or govern the flight paths, altitude that aircraft fly at or in any manner set up rules and regulations for the manner in which aircraft are operated.” Id. at 2.
43. See, e.g., People of the State of California ex rel. City of Inglewood v. City of Los Angeles (pending Cal. Super. Ct., Los Angeles County); City of Park Ridge v. Chicago (pending Ill. Cir. Ct., Cook County).
44. State of New York v. Port of New York Authority, et al. (pending N.Y. Sup. Ct., Nassau County).
45. The inability of the Port of New York Authority to find a site for a fourth jet port is a case in point. Similar problems are being encountered in Los Angeles, Miami, Minneapolis and elsewhere.
46. See footnote 13 to the 1966 Paper. After scheduled airline operations were shifted from Midway to O'Hare in 1962, the area around Midway experienced a sharp economic decline, and demands for the return of the airlines soon overwhelmed occasional complaints about jet noise. See N.Y. Times, Jan. 15, 1967.
47. 11 Av. Cas. 17,436 (N.J. Super. Ct., Morris County, 1969).
48. Town of East Haven v. City of New Haven, 31 Conn. L.J. 51 (1970); Town of East Haven v. Eastern Air Lines, 282 F. Supp. 507, 10 Av. Cas. 17,751 (D. Conn. 1968), where the federal court denied motions of airline defendants to dismiss complaint.
49. See, e.g., City of Heath v. Licking County Regional Airport Authority, 237 N.E.2d 173, 45 Ohio Op. 2d 68 (Ohio Ct. Common Pleas, 1967), where the court permitted the expansion; City of Park Ridge v. Chicago, note 43, supra; Village of Bensenville v. City of Chicago (pending Ill. Cir. Ct., DuPage County).
50. Kentwood Home Guardians v. City of Los Angeles (pending Cal. Super. Ct., Los Angeles County).
51. City of Heath v. Licking County Regional Airport Authority, note 49, supra.
52. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970).
53. Indeed the defense of “legalized nuisance” in such cases is judicial recognition that the legislative body has decided, in authorizing the airport, that its nonnegligent operation in accordance with applicable regulations, whether or not a common law nuisance, has been “legalized”. A California statute embodies this doctrine. Cal. Civil Code § 3482.
54. 11 Av. Cas. 17,642 (Cal. Super. Ct., Los Angeles County, 1970).
55. Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1964), cert. den., 379 U.S. 989 (1965); consolidated with Aarhus v. Port of Seattle for purposes of deciding the Port's liability.
56. 233 Ore. 178, 376 P.2d 100 (1962).
57. Henthorn v. Oklahoma City, 453 P.2d 1013, 10 Av. Cas. 18,367, 18,369 (Okla. 1969); Ferguson v. City of Keene, 238 A.2d 1, 10 Av. Cas. 17,715, 17,716 (N.H. 1968); City of Jacksonville v. Schumann, 199 So.2d 727, 10 Av. Cas. 17,331, 17,332 (Fla. Dist. Ct. App., 1st Dist. 1967).
58. 445 P.2d 481, 251 Ore. 239 (1968).
59. Note 9, supra.
60. See discussion of the test in the 1966 Paper. 32 J. Air Law and Commerce, at 398-403.
61. See, e.g., Hoyle v. City of Charlotte, 172 S.E.2d 1, 11 Av. Cas. 17,482, 17,487 (N.C. 1970); City of Houston v. McFadden, 420 S.W.2d 811 (Tex. Ct. Civ. App. 1967); note 57, supra; note 64, infra.
62. The court in Aaron v. City of Los Angeles, note 54, supra, at 17,651, allowed recovery for “substantial” damages from airport noise in amounts as small as $400.
63. See Creel v. City of Atlanta, 399 F.2d 777, 778, 10 Av. Cas. 18,053, 18,054 (5th Cir. 1968).
64. Ferguson v. City of Keene, note 57, supra; Nestle v. City of Santa Monica, 10 Av. Cas. 18,238, 18,240 (Cal. Super. Ct., Los Angeles County 1969).
65. Henthorn v. Oklahoma City, note 57, supra; Aaron v. City of Los Angeles, note 54, supra, at 17,650; Iglewood Residents' Protective Ass'n v. City of Los Angeles, 11 Av. Cas. 17,696, 17,697 (Cal. Super. Ct., Los Angeles County, 1970); cf. City of Jacksonville v. Schumann, 10 Av. Cas. 17,331 (Fla. Dist. Ct. App., 1st Dist., 1967).
66. Aaron v. City of Los Angeles, note 54, supra, at 17,650. One of many incidents which anticipated the use of such contour maps by a court in fixing liability was the preparation and commercial distribution of maps of this sort in Houston with a title superimposed that made them appear to be FAA documents. In Alevizos v. Airports Commission, note 42, supra, the complaint had attached a similar noise contour map.
67. The booklet's preface made it clear that the FAA did not endorse its conclusions: “This report is interim in nature and the FAA makes no representations and assumes no responsibility regarding the matters and opinions contained therein.”
68. Note 66, supra.
69. Schantz v. Rachlin, 244 A.2d 328, 334 (N.J. Super. Ct. 1968). Cf. the Town of Morristown case, note 47, supra, at 17,439.
70. See Lombardy v. Peter Kiewit Sons' Co., 266 Cal. App. 2d 599, 602, 72 Cal. Rptr. 240 (1968), cert. den., 394 U.S. 813 (1969); and Northcutt v. State Road Dep't, 209 So.2d 710, 711-712 (Fla. Dist. Ct. App., 3rd Dist., 1968), for an illustration of the difficulty in distinguishing between airport noise and highway noise. The New York courts have treated highway noises differently depending on the pre-existing surroundings of the plaintiff's property. The Court of Appeals has held that increased highway traffic, noise, fumes and loss of privacy should be considered in determining consequential damages for a taking of part of property in the Adirondacks for highway purposes where the property had been “entirely secluded, quiet and peaceful”. Dennison v. State, 22 N.Y.2d 409, 411 (1968). The Appellate Division, Third Department, declined to follow Dennison in a case where the property had not formerly possessed “quietude, tranquility, and privacy”. Valicenti v. State, 35 A.D.2d 610, 312 N.Y.S.2d 93, 95 (1970).
71. Aaron v. City of Los Angeles, note 54, supra, at 17,647.
72. People ex rel. Dep't of Public Works v. Symons, 54 Cal. 2d 855, 862, 357 P.2d 451, 455 (1960).
73. Smith-Hurd Ill. Ann. Stat. Ch. 15-1/2 § 48.1 et seq., especially § 48.16-.18.
74. Minn. Stat. Ann. § 360.74-.80 (Supp. 1969).
75. Note 49, supra.
76. Euclid v. Ambler, 272 U.S. 365 (1926). Various aspects of zoning around airports are discussed in Strunck, Airport Zoning and Its Future, 50 A.B.A.J. 345 (1964); Tondel article, note 82, infra; Hallworth, Judicial Legislation in Airport Litigation - A Blessing or a Danger? 39 Notre Dame Law 411 (1963); Young, Airport Zoning, 1954 U. Ill. L.F. 261 (1954); Fenerty, Legal Aspects of Airport Zoning, 9 A.F. JAG L. Rev. 40 (1967); Seago, Airport Noise Problems and Airport Zoning, 28 Md. L. Rev. 120 (1968); Note, Airport Zoning as a Height Restriction, 13 Hast. L. J. 397 (1962); Comment, Airport Approach Zoning: Ad Coelum Rejuvenated, 12 U.C.L.A. L. Rev. 1451 (1965); Comment, The Validity of Airport Zoning Ordinances, 1965 Duke L.J. 792 (1965); Hildebrand, note 2, supra; Annot., 77 A.L.R.2d 1355 (1961).
77. See, e.g., Indiana Toll Road Commission v. Jankovitch, 244 Ind. 574, 193 N.E.2d 237 (1963), cert. den., 379 U.S. 487 (1965).
78. Harrell's Candy Kitchen v. Sarasota-Manatee Airport Authority, 111 So.2d 439, 443 (Fla. 1959).
79. Harrell's Candy Kitchen, note 78, supra; Waring v. Peterson, 137 So.2d 268 (Fla. Dist. Ct. App. 1962). In one other state such an ordinance was found to be valid on the ground that it provided for the granting of variances where enforcement of the zoning regulations would impose unfair restraints on property owners. Baggett v. City of Montgomery, 160 So.2d 6, 9 (Ala. 1963).
80. Indiana Toll Road Commission v. Jankovitch, note 77, supra; Dutton v. Mendocino County, 1949 U.S. Av. 1 (Cal. Super. Ct. 1948); Roark v. City of Caldwell, 394 P.2d 641, 87 Ida. 557 (1964); Rice v. City of Newark, 132 N.J.L. 387, 40 A.2d 561 (1945), and Yara Engineering Corp. v. City of Newark, 132 N.J.L. 370, 40 A.2d 559 (1945) (unconstitutional because not authorized by state enabling statute); Jackson Municipal Airport Authority v. Evans, 191 So.2d 126, 9 Av. Cas. 18,297 (Miss. 1966) (zoning limitation on height so restrictive it amounts to a taking); Shipp v. Louisville and Jefferson County Air Board, 431 S.W.2d 867, 10 Av. Cas. 18,161 (Ky. Ct. App. 1968) (municipal airport board had no prescriptive right to remove tops of trees which violated zoning regulations, but must instead proceed by condemnation); Banks v. Fayette County Bd. of Airport Zoning Appeals, 313 S.W.2d 416 (Ky. Ct. App. 1958) (zoning regulation which bars commercial uses but permits apartment houses and hospitals has no relation to the purpose of eliminating airport hazards and is unreasonable; the court did not find a taking, instead held that a permit must be granted); Hageman v. Bd. of Trustees of Wayne Township, 11 Av. Cas. 17,235 (Ohio Ct. App. 1969) (unconstitutional because owners of land cannot be required to bear the cost of insuring the safety of those who use facilities of Air Force Base; such use is for benefit of a governmental agency).
81. But see Mutual Chemical Co. of America v. Mayor of Baltimore, 1 Av. Cas. 804, 807 (Md. Cir. Ct. 1939) (zoning of an area surrounding an airport is for the benefit of those who use aerial transportation and those who own airplanes, not for benefit of the general public).
82. Tondel, Legal, and Related, Aspects of Land Use Planning, paper prepared for Air Transport Association of America, presented at United Kingdom Noise Conference, London, November 22-30, 1966; printed for use of House Subcommittee on Transportation and Aeronautics, Committee on Interstate and Foreign Commerce, 90th Cong., 1st Sess., in Legal and Related Aspects of Aircraft Noise Regulation (Comm. Print 1967).
83. Morse v. County of San Luis Obispo, 55 Cal. Rptr. 710 (Dist. Ct. App. 1967); Smith v. County of Santa Barbara, 52 Cal. Rptr. 292 (Dist. Ct. App. 1966); Township of Hickory v. Chadderton, 10 Av. Cas. 17,686 (Pa. Ct. of Common Pleas, Mercer County, 1967). See also, Oklahoma City v. Shadid, 439 P.2d 190 (Okla. 1966), cert. den., 386 U.S. 1034 (1967).
84. Vance County v. Royster, 155 S.E.2d 790, 10 Av. Cas. 17,442, 17,447 (N.C. 1967).
85. Id. at 17,445; Cole v. LaGrange, 113 U.S. 1 (1885); Missouri Pacific Ry. Co. v. Nebraska, 164 U.S. 403 (1896); Charlotte v. Heath, 226 N.C. 750, 40 S.E.2d 600 (1945). See 26 Am. Jur. 2d, Eminent Domain, §§ 25-27.
86. See, e.g., Cuglar v. Power Authority, 4 Misc. 2d 879, 163 N.Y.S.2d 902 (Sup. Ct.), aff'd 4 A.D.2d 801, 164 N.Y.S.2d 686 (4th Dept.), aff'd 3 N.Y.2d 1006, 170 N.Y.S.2d 341, 147 N.E.2d 733 (1957); 2 Nichols on Eminent Domain § 7.2(2) (1963).
87. In City of Carlsbad v. Ballard, 378 P.2d 814, 8 Av. Cas. 17,492 (N.M. Super. Ct. 1963), it was held that the city had exceeded its authority by condemning more land than was needed for a clear zone; see also Johnson v. Consolidated Gas, E.L.& P. Co., 187 Md. 454, 50 A.2d 918 (1947).
88. United States v. 91.69 Acres, 334 F.2d 229 (5th Cir. 1964) (discretion to take more than necessary for public use when for public protection and safety).
89. Griggs v. Allegheny County, 369 U.S. 84 (1962). Mr. Griggs was reported to have sold his home to St. Philip Episcopal Church!
90. However, particular avigation easements have been held not to be a defense where the airspace was being used by noisier aircraft. A.J. Hodges Industries, Inc. v. United States, 355 F.2d 592, 9 Av. Cas. 18,025 (Ct. Cl. 1966).
91. Certain Legal Aspects of Required Soundproofing in High Noise Areas Near John F. Kennedy International Airport, prepared for the Tri-State Transportation Commission, February 1970, pursuant to HUD contract H-1091, Tri-State Transportation Commission subcontract 9613 (1969).

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