The internet has been abuzz lately with talk about the latest legal action filed by the City of Santa Monica (“City”) against the Federal Aviation Administration (“FAA”), on October 31, 2013, seeking to avoid FAA’s refusal to allow the closure of Santa Monica Airport, see City of Santa Monica v. United States of America, et al., U.S.D.C. Case No. CV13-08046, an active general aviation airport surrounded by residential neighborhoods.

More specifically, the suit seeks to: (1) quiet title to the real property upon which the airport is now located, pursuant to 28 U.S.C. § 2409a, as having been owned in fee simple by the City since approximately 1926; (2) obtain a judicial declaration that any attempt by FAA to prevent closure interferes with the City’s constitutional obligations to protect the public health, safety and welfare and, thus, constitutes a “taking” without just compensation in violation of the Fifth Amendment to the United States Constitution.  The City bases this claim on its ownership of the airport property in fee simple, and any constraint on closure is “constructive confiscation of airport property, and, thus, a violation of the prohibition on takings with just compensation in the Fifth Amendment to the United States Constitution;” (3) establish violation of the Tenth Amendment to the United States Constitution brought about by FAA’s stepping outside the rights given to the federal government under Constitution, and incurring on the powers of protection of the public health, safety and welfare left to the states; and (4) establish violation of the Due Process Clause in the Fifth Amendment to the United States Constitution arising from FAA’s contravention of its own regulatory guidance, which limits FAA’s power to restrict closure to those instances where FAA owned the property upon which the airport to be closed is located. 

Leaving aside: (1) the difficulty of maintaining a case for inverse condemnation, or “taking” by one public entity against another where the express language of the Fifth Amendment provides that “private property [shall not] be taken for public use without just compensation,” see, e.g., Complaint, ¶ 106 [emphasis added]; and (2) the hurdle of obtaining declaratory and injunctive relief as a remedy for unconstitutional taking, where the law is clear that monetary damages are the exclusive remedy, there are several attributes that make this case unique, and, thus, not a precedent for action by others seeking to close airports. 

First, in this case, the City remains the owner of the underlying fee simple property which was never owned by the federal government before it was leased in 1941 to facilitate the ongoing war effort.  It is, in this case, the lease with the federal government that contains the “reverter” clause allowing the airport to revert to federal ownership upon cessation of aviation use, upon which FAA depends in restraining the City’s efforts to close the airport.  In the typical case, however, such as in military base conversions, the federal government is the deed holder to the underlying property, and the local jurisdiction receives fee simple property in return for perpetual aviation use. 

Second, the City is in the unique position of having accepted its last airport improvement program (“AIP”) grant from the FAA in 1994.  Even though such grants carry with them contractual obligations (“Grant Assurances”) including a requirement for the continuing operation of the airport, those Grant Assurances last, in most cases, for 20 years.  Therefore, the City’s obligation will expire at the end of 2014.  FAA may, therefore, be precluded from relying on the Grant Assurances to keep the City from closing the airport.

In short, for reasons both of the tenuous legal strength of the City’s claim, and the uniqueness of the governing facts, it is suggested that other jurisdictions contemplating the same path, and local organizations advocating such action, think carefully about embarking on the stormy and expensive sea of airport closure, especially where the unique conditions applicable to the City do not apply.