Local Airport Victory

OLYMPUS DIGITAL CAMERAOn May 4, 2015, a Hunterdon County Superior Court Judge issued a sharply worded 54-page ruling in the protracted eminent domain litigation involving Solberg Airport (N51) and Readington Township, New Jersey.  Judge Paul Armstrong ruled that the Township’s claimed environmental purpose for condemning land owned by the airport was actually a “ploy” to thwart the airport’s expansion plans, which amounted to a “manifest abuse of the power of eminent domain.”

Characterizing the Township’s motives to create a contiguous open space greenway using airport property as “deliberate subterfuge,” Judge Armstrong noted that “the evidence clearly and convincingly shows that these reasons were a pretext for Readington Township’s true purpose, which was to limit the airport’s capacity to remain economically competitive and to limit its expansion”.

The case itself dates back to 2006, when the Township enacted an ordinance authorizing the taking of approximately 726 acres of land belonging to the airport. Initially, Township officials sought municipal control over factors like runway length, hanger size and jet aircraft noise at the airport.  But after the ordinance authorizing the condemnation was passed in July 2006, Township officials were sharply criticized for the Township’s use of its eminent domain power in this regard.  Following the advice of its retained public relations firm, the Township shifted focus from control over airport operations to preservation of open space.

Judge Armstrong noted that testimony of several Township officials showed “that each, after their own fashion, were faithful pupils of the shifting strategies of their public relations firm, CN (the public relations firm)”.  According to the judge, Township officials publicly “demonized” the airport “by disseminating a catalog of fears and appeals to mistrust which mischaracterized” the expansion plans.

The court re-vested Solberg Aviation Co. with ownership of the property and awarded it counsel fees and expenses, including expert fees, to be calculated later and paid by the Township.  The Township has forty-five days to file an appeal of this decision.

Land use and zoning are volatile issues, especially on the local level when concerning such high-profile uses as airports.  Owners and operators should seek legal counsel with experience in both land use and aviation.  The firm of Inglesino, Webster, Wyciskala & Taylor, LLC offers such expertise, as well as a wide-range of legal services, to its clients.

FAA Announces Unmanned Aircraft Testing Sites

quadcopter-droneThe FAA recently announced the congressionally-mandated research and test sites for unmanned aircraft systems (“UAS”).  The test site operators selected by the FAA are:

The University of Alaska;

The state of Nevada;

Griffiss International Airport (RME) (New York);

The North Dakota Department of Commerce;

Texas A&M University – Corpus Christi; and

Virginia Polytechnic Institute and State University.

In announcing its selections, the FAA stated that “each test site operator will manage the test site in a way that will give access to parties interested in using the site.”  However, the agency has yet to announce rules or procedures by which it will ensure that UAS will avoid and not enter the same airspace as manned aircraft, or whether UAS operating at these test sites will meet the same certification and airworthiness standards as manned aircraft.

No Right Turns Unless Authorized or Required

220px-Turn_coordinator_-_coordinated.svgIn a recent legal opinion, the FAA clarified its position on FAR 91.126 regarding turns on approach to an airport in uncontrolled airspace.  In response to an inquiry regarding whether the regulations authorized turns to the right in the vicinity of uncontrolled airports, the FAA concluded that a pilot approaching to land at an uncontrolled airport may make right turns if approved light signals or ground markings indicate that right turns are required, or if such deviation is “authorized or required”.  However, such authorized or required deviations are rarely appropriate under the regulations.  The FAA stated that the phrase “authorized or required” itself does not give pilots the discretion to deviate from FAR 91.126.  Such deviation must be “authorized or required” by the approach guidelines of a specific airport or by another FAA regulation.  For example, § 91.3(b) authorizes the pilot in command (PIC) of an aircraft to deviate from any rule of part 91 to the extent necessary to resolve “an in-flight emergency requiring immediate action.”  Such a decision to deviate is within the PIC’s judgment, however, this determination must be made in good faith based on safety concerns and not convenience.

Sequestration Comes to New Jersey

The FAA has released it schedule of tower closings due to federal sequestration.  According to statistics provided by  AOPA, the FAA is being forced to cut $600 million, about 5 percent of its budget, and the Contract Tower Program is slated to take a 75-percent cut.  On the list of tower closings is Trenton Mercer Airport (TTN) in Ewing, New Jersey.  Situated on the edge of the Philadelphia Class B airspace, Trenton Mercer Tower provides key coordination and separation services for both air carrier and general aviation operations.  Pilots should check the tower closing list and call ahead to verify whether ATC services will be available at their destination.  For safety and compliance, pilots who do not regularly operate at uncontrolled airports should review non-towered airport procedures prior to departure.

FAA to Begin “Ratcheting Down” Operations Under Sequestration

This week, FAA Administrator Michael Huerta laid out the FAA’s plan if mandatory federal budget cuts go into effect on March 1.  He indicated that sequestration will mean furloughs, shuttered control towers, slowed NextGen modernization programs, selective repairs of navigation aids, and a “steady ratcheting down” of FAA operations.  According to AOPA Senior Vice President of Government Affairs Melissa Rudinger, general aviation will suffer the greatest impacts of sequestration.

Because the budget reduction program requires percentage-based cuts across the board, all FAA programs will be vulnerable, including control towers under the FAA’s Contract Tower Program, which are expected to gradually close.   Eventually Lockheed-Martin Flight Service and DUAT flight planning will also be affected.  Advocacy groups, including AOPA, are pushing for a legislative solution before the March 1 deadline.

FAA Proposes to Swallow Cornelia Fort Airpark Class C Exclusion

In a recent proposal, the FAA set forth its plan to take back a Class C airspace exclusion extending from the surface up to 2,400 feet MSL, which extends in a 1.5 NM radius around the former Cornelia Fort Airpark.  Although Cornelia ceased operations last year, the Class C exclusion remains approximately 4 NM north of Nashville International Airport (KBNA).  The only reason cited by the FAA for removing the Class C airspace exclusion is that “it would restore the Class C surface area to the standard configuration of a 5 NM radius around Nashville International Airport and would enhance the management of aircraft operations at the airport.”  However, the FAA failed to cite any current issue with the management of aircraft around KBNA which would necessitate removing the current exclusion.  Public comments regarding this proposal must be received by April 1, 2013.

FAA Proposes to add Wildlife Management Requirements to Federal Airport Grant Program

In a December 10, 2012 Federal Register notice, the FAA announced its proposal to require non-certificated airports that receive federal grant funds to identify and mitigate wildlife hazards at their airports.  The mitigation mandate will take the form of initial Wildlife Hazard Site Visits (WHSVs) or Wildlife Hazard Assessments (WHAs), depending on the
size of the airport, potentially followed by more detailed Wildlife Hazard Management Plans (WHMPs).

The FAA’s stated purpose of a WHSV is for the airport to identify any immediate hazards and for the FAA to determine whether a more comprehensive WHA is necessary.  However, small general aviation airports may become unnecessarily burdened by these proposed requirements.  Wildlife hazard mitigation programs can be costly and burdensome, especially in the current fiscal climate.  Airport owners and managers with questions or concerns about the FAA’s proposed Wildlife Hazard Assessment program should consult with legal counsel.

Planes on Highways – The Intersection of Federal and Local Authority

Photo credit: U-T San Diego, John Gibbins / AP

Every now and then, a story emerges regarding a small airplane that made an emergency landing on a public road or highway.  The press never fails to sensationalize the story, often concluding without any evidence that a “stall” or other “failure” caused the incident.  Thankfully, skilled pilots who are forced to make these types of emergency landings often walk away from the event.  The Federal Aviation Regulations authorize a pilot in command to deviate from any rule to the extent necessary to “meet that emergency.”  See FAR 91.3(b).  However, when landing on tarmac not owned or operated by FAA governed airports, pilots often encounter difficulties from the state and local authorities which govern the commandeered pavement.

State and local authorities who have no specialized training in aviation regulations may cite  pilots in these situations for obstructing highways, damaging property, careless operation, and other offenses despite the fact that the pilots most likely failed to violate a single FAR.  It is important to remember that when faced with such a situation, any statement made to authorities may be used against you.  Similarly, statements made to the press will often be misprinted and misconstrued.  It is wise consult an experienced aviation attorney before speaking to any authorities – federal, state, or local.  Our attorneys are available to assist in a wide range of situations, both emergency and routine.

Cincinnati’s Closure of Blue Ash Airport is Indicative of Municipal Agendas

In a move reminiscent of Chicago Mayor Richard M. Daley’s closure of Megis Field, Cincinnati City Manager, Milton Dohoney, has communicated to the FAA the City’s intention to close Blue Ash airport after a land swap deal between the city and the airport fell through.  Because neither the City nor the airport are currently receiving federal grant monies, the FAA cannot require the City to keep the airport open.  (Read the article here)

Cincinnati’s blow to general aviation provides a salient reminder that thanks to the current architecture of New Jersey’s Municipal Land Use Law, airports across the Garden State could fall victim to a similar fate.  Many general aviation airports in New Jersey operate as pre-existing non-conforming uses in zones that have been significantly altered by municipal governments in the decades since the airports opened.  The current push for revitalization and redevelopment across the state has provided the impetus for municipalities to create areas in need of redevelopment (formerly known as “blighted areas”) and begin condemnation proceedings.  Airports included in such areas could fall victim to the forced sale of their lands to developers.  Aggressive government relations plans and ongoing communication with municipal officials are key measures to prevent adverse government action.  Airports seeking to implement such strategies should consult attorneys experienced in both land use and aviation in order to develop a comprehensive plan.  Please feel free to contact us if you are interested in developing such a plan for your airport.

FAA Proposes Policy Revisions for Through-The-Fence Operations

The FAA is seeking public comments regarding proposed rules on through-the-fence operations at airports which receive federal grant funds. The proposed rules effect and enforce the terms and conditions of through-the-fence agreements between federally-obligated airports and residential property owners, as required by 49 USC § 47107. Although existing agreements between property owners and non-commercial airports may be grandfathered under the proposed policy, new agreements will subject residential property owners to explicit terms and conditions, including access charges, infrastructure costs, access control, refueling prohibitions, and property maintenance strictly for residential use.

Comments regarding the proposed rules are due by August 29, 2012. If you need assistance with a through-the-fence agreement, or any other operational issues, please contact us.