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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