Daily Development for Thursday, April 22, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
NUISANCE; AIRPORTS: A private uncontrolled airport less than one-half mile away
from another private uncontrolled airport may be enjoined as a nuisance due to
danger of midair collisions, and such ruling is not preempted by the occupation
of the field of airspace regulation by the federal government, since it deals
with land use only..
Emerald Development Company v. McNeill, 120 S.W.3d 605 (Ark. Ct. App. 2003).
Defendant, a developer of a residential community, began constructing a small
private airport for use by its residents. There was a neighboring residential
community that had its own private airport less than one-half mile away from the
airport being constructed by the defendant. Prior to completion of the airport,
the neighbors sought an injunction against the operation of Defendant’s airport
based upon nuisance theory.
The trial court ruled in favor of the plaintiffs and issued the injunction.
The defendant claimed that the trial court’s authority to enjoin the operation
of the new airport was preempted by the Federal Aviation Act. The FAA had
recommended against the construction of the second airport but, for reasons not
explained by the court, the FAA opinion was advisory only. Defndant argued that
the trial court’s injunction was an attempt to regulate airspace, which is a
field occupied entirely by the federal government. It argued that what the
Congress and the FAA choose not to prohibit, they have made a decision to
permit. The court of appeals disagreed, reasoning that the trial court was not
regulating airspace but regulating the use of the defendant’s land.
The defendant next argued that the new airport did not constitute a nuisance
because there existed no actual physical harm to person or property. The
defendant relied on the rule of law that “mere fear or apprehension of danger,
without more, is not sufficient to warrant injunctive relief for abatement of a
nuisance.” The court of appeals, however, found the close proximity of two
private airports, without benefit of a tower or ground control of any kind,
created a situation in which “danger is substantially likely and actually
threatened to a reasonable certainty.”
Defendant’s expert contended that the two airports could be operated safely if
the old airport developed a landing patter that developed on the west side -
away from the area of overlap with the new proposed airport. The Plaintiff
responded that this would require Plaintiff’s flyers to make right hand turns as
part of the pattern, and the testimony showed that typically airport flight
patterns involved only left hand turns. Although the regular visitors to the
airport would know of the difference in the flight patterns here, there were
occasional strangers coming to the airport, who might not become properly
educated.
Last, the defendant made the rather bold argument that any personal injury and
property damage resulting from a midair collision could be properly redressed in
court. The court of appeals disagreed, stating, “if a trial court perceives that
a dangerous incident is substantially likely to occur as the result of a certain
activity, we are loath to say that the court may not enjoin that activity simply
because the people injured or killed might be monetarily compensated.”
Comment 1: Of course, the court’s argument that it was regulating only land use
was somewhat tenuous, as it acknowledged. Of course the prohibition of the
construction of an airport impacts on air space. Of course an FAA regulation
permitting the construction of an airport might preempt a decision based upon
flight safety considerations. But the FAA took no action at all, except to
recommend against the new airport, so to argue that it had “occupied the field”
here seems a little strained. The argument was not developed very thoroughly.
Comment 2: The nuisance theory is something that the editor finds interesting,
because it has elements of a very “pure” nuisance dispute. The sole reason the
second airport was a nuisance was that the first airport was doing exactly the
same thing. Why is the second airport the party to bear the consequence of the
conflict? Neither use really has any preemptive authority over the other. But
why would it be more proper to enjoin the first airport? Since neither airport
could control entirely when someone was likely to come out of nowhere and use
either airport, it was difficult to limit the use of one airport to make room
for the other. Property professors ought to enjoy exploring the ramifications of
this one.
Comment 3: Another interesting ramification of the case is the question of
takings law. It doesn’t really arise here, because the court enjoined the second
airport before it was built. But what if both airports were in operation when
the dispute arose? Each owner had “investment backed expectations” that would
have been wholly frustrated by the closing of that owner’s airport. Such a
closure would not be actionable as a taking if it arose as a consequence of a
finding of “common law nuisance,” according to the decided Supreme Court
authority. But the nuisances likely envisioned by Justice Rehnquist when he
penned these words had more to do with activities that were a direct danger to
public health and safety. Intrinsically, the second airport was not such an
activity. It was a danger only when the first airport was taken into account. Is
this what the Supreme Court had in mind?
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