El Paso County Seeks Control Over Colorado Springs Airport

In an exercise of regulatory zeal, El Paso County, Colorado (“County”) now requires that City owned Colorado Springs Airport (“Airport”) obtain a permit from the County for any changes in airport physical development or operations that might affect nearby property located in the County. 

Purportedly under the authority of the Colorado Areas and Activities of State Interest Act, § 24-65-101, et seq., the Board of County Commissioners (“Board”) “has specific authority to consider and designate matters of state interest . . . and to adopt guidelines and regulations for administration of areas and activities of state interest. . .”  Pursuant to that purported authority, by Resolution No. 13-267, June 6, 2013, and recorded at Reception No. 213077196 of the El Paso County Clerk and Recorder’s Office, “the Board designated certain areas and activities of state interest” and established “a permit process for development in certain areas of state interest,” Resolution No. 13-530, Resolution Amending Guidelines and Regulations for Areas and Activities of State Interest of El Paso County, and designating additional matters of state interest.  December 17, 2013.  The new areas of state interest designated in the Resolution include: “site selection and expansion of airports,” Resolution, p. 3, § 1.  The County has interpreted the permit process to extend to “runway extension, noise and other impacts that might affect property owners . . .,” Gazette, January 17, 2014, quoting Mark Gebhart, Deputy Director of County Development Services Department. 

Therein lies the rub. 
 

To the extent that the Resolution purports to control the Airport’s airfield configuration, and because the Airport is owned and operated by another jurisdiction, the City of Colorado Springs, the Resolution runs into the brick wall of federal preemption.  “Under the doctrine of preemption, federal law prevails over state law if Congress has expressed an intent to occupy a given field in which federal law is supreme.”  Bethman v. Ukiah, 216 Cal.App.3d 1395, 1405 (1989).  By virtue of Congress’ clearly expressed intent in the Federal Aviation Act, 49 U.S.C. § 40101, et seq., to occupy the field of aircraft safety, federal law expressly preempts state law in those areas enumerated in Federal Aviation Act § 40103(b). 

Under Federal Aviation Act § 40103(b), the FAA Administrator is exclusively tasked with developing “plans and policies for the use of navigable airspace and assign[ing] by regulation or order the use of the airspace necessary to ensure the safety of aircraft and efficient use of airspace.”  Federal Aviation Act § 40103(b)(1).  The scope of the mandated air traffic regulations is broad, including, but not limited to, “(B) protecting individuals and property on the ground; (C) using the navigable airspace efficiently; and (D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.”  Federal Aviation Act § 40103(b)(2)(B)-(D).  Toward that end, FAA also mandates the airfield dimensions necessary to safely accommodate the arrival and departure of aircraft, including runway and taxiway dimensions and certain zones around airports such as the Runway Protection Zone that airports must keep free of obstructions both on the ground and in the air.  See, e.g., 14 C.F.R. Part 77; FAA Order 5190.6B, Part IV, Chapter 21, § 21.6(f)(6), p. 21-9.  The United States Supreme Court has also recognized the supremacy of federal law governing aviation safety. 

“The Federal Aviation Act requires a delicate balance between safety and efficiency, [cites omitted] and the protection of persons on the ground.  [Cites omitted] . . .  The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.  [Cites omitted].”

City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 638-639 (1973). 

While the Resolution purports to be exclusively aimed at protecting nearby land uses; and while it is true that the Congress did not bestow upon FAA authority to regulate off-airport land uses, see, e.g., FAA Order 7400.2J, § 5-1-2.a, to the extent that the Resolution aims at controlling airport operations (which are the source of off-airport noise), or configuration (e.g., runway alignments), the Resolution falls squarely into the area of authority assigned exclusively to the federal government.

The Colorado Springs City Attorney’s Office agrees that the rules are vaguely drafted and in some conflict with federal regulations.  That opinion does not, however, go far enough.  The City should find guidance in the experience of the State of California’s Department of Transportation’s (“Caltrans”) attempt to impose a curfew upon operators at San Diego International Airport.  San Diego Unified Port District v. Gianturco, 651 F.2nd 1306, 1317 (9th Cir. 1981).  That case teaches that the local land use jurisdiction surrounding an airport should seek to control airport impacts by controlling proximate sensitive land uses, including residential uses, within their jurisdictions, not by controlling airport operations and physical development located outside it. 
 

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