City of Burbank v. Lockheed Air Terminal

In a decision of October 21, 2019, the Federal Aviation Administration (“FAA”) defied its own regulations, federal law, and logic in determining that the City of Santa Monica had properly expended airport revenues in the demolition of 3,500 feet of the runway at Santa Monica Municipal Airport (“SMO”), for the express purpose of limiting access by turbojet aircraft.

In its decision, FAA stated “[w]e conclude that airport revenue may be used to fund the payment removal, pavement pulverization, and hydro-seeding project, including the work within the Runway Safety Area, at SMO. The removal of the subject pavements, pavement pulverization and reuse, and the soil stabilization at SMO appears justified as an airport operating cost.” [Emphasis added]. Existing law and governing regulations would, however, appear to lead to the contrary conclusion.


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On July 26, 2012, the Commonwealth Court of Pennsylvania overturned a Pennsylvania statute preempting the right of local jurisdictions to impose land use restrictions on hydraulic fracturing, or “fracking,” within their boundaries.  Unlike courts in the States of Ohio and Colorado, the court in Robinson Township v. Commonwealth of Pennsylvania, et al., 2012 WL 3030277 (2012) held that the Pennsylvania statute violates the “basic precept that ‘land use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.’”  Id. at 15, quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995).  Fracking involves the high pressure injection of water and sand carrying certain chemicals into rocks in which is concealed deposits of oil and gas.  Residents near fracking sites have complained of, among other things, pollution of the underground water supply, and increasing instability and subsidence of structures undermined by the process.  Supporters of the Pennsylvania law claimed that it provides the uniformity of regulation necessary for the successful continuation of Pennsylvania’s relatively new and profitable fracking industry.  Critics, however, take the position that removing local restrictions on the fracking would be to undermine decades of rational development, and open the door to the “pig in the parlor” to which the Supreme Court referred in upholding local zoning originally in Euclid v. Ambler, 272 U.S. 365 (1926).

The implication of these differences ranges far beyond Pennsylvania, because, among other reasons, the positions taken over local regulation of fracking do not differ notably from those taken with respect to local regulation of airport impacts.
 


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