Posted by: Patricia Salkin | September 6, 2012

IN Appeals Court Holds Airport Authority Does Not Have Zoning Rights Over Airport Property

The Indianapolis Executive Airport is located in Boone County has operated at that site since the 1950s. In 2003, Hamilton County purchased the airport, and in September 2004, the Board of Aviation Commissioners of Hamilton County recorded covenants to govern land use at the airport. “The Boone County Commissioners and the Boone County Area Plan Commission obliged the Aviation Commissioners to execute these covenants in exchange for creating airport districts as a category of use under the county zoning ordinance and designating the airport site for this purpose.” In 2006, the Airport Authority was created and it received all of the Aviation Commissioners’ assets, which included the airport. “In July 2008, the Town of Zionsville, Eagle Township, and Union Township adopted a plan of reorganization that combined the three governmental units into a single entity, known as the Town of Zionsville. The Town thus gained zoning jurisdiction over the former Eagle Township and Union Township in areas where Boone County previously exercised it, including the airport.” In February 2010, Zionsville informed the Airport Authority that it needed approval from the planning department prior to obtaining construction permits. This led to a dispute regarding zoning jurisdiction over the airport.

The Airport Authority asked the court to determine: “(1) that the Authority has exclusive jurisdiction over land use, zoning, and drainage at the airport; (2) that the Boone County Zoning Ordinance and the Zionsville Zoning Ordinance are invalid as applied to the airport; and (3) that the covenants of 2004 are invalid.” The trial court granted the Authority’s motion. Zionsville appealed.

On appeal, the Court noted that the issues were whether: “(1) as a governmental unit of general authority, Zionsville has planning and zoning jurisdiction over the airport, and (2) whether, even if it does not, the covenants of 2004 remain binding upon the Authority.”

Zionsville claims jurisdiction because “the Indiana Code’s leading provisions granting general zoning authority over a relevant geographic area assign that authority to ‘units’ of local government and specifically define a ‘unit’ as a county, municipality, or township, not including specialized entities like airport authorities.” Ind.Code § 36–1–2–23 (1980). The Airport Authority on the other hand claims it has separate statutory authority to exercise zoning jurisdiction. The Authority may “fix and determine exclusively the uses to which the airport lands may be put. All uses must be necessary or desirable to the airport or the aviation industry and must be compatible with the uses of the surrounding lands as far as practicable.” Ind.Code § 8–22–3–11(16) (“subsection 16,” for short). Zionsville in turn claims that the phrase “to fix and determine exclusively the uses” is not synonymous with zoning jurisdiction.

The Court noted that special local entities like airport authorities, have enumerated powers that often “read as rather robust in order to portray a sufficient picture of independence to warrant avoidance of the municipal debt limitations of Article 1, Section 7 of the Indiana Constitution. Second, it is fairly common that these specialized entities are charged with assignments that involve public safety or health or both. Third, a great many of these special entities operate in complex legal environments requiring that they navigate among multiple federal and state taskmasters.” Therefore, the Court reasoned that “the legal claim of exclusive power advanced by the Airport Authority is one that, with different Code sections and different public purposes substituted, could be deployed by any number of other local government entities.”

In City of Crown Point v. Lake County, 510 N.E.2d 684 (Ind.1987), The Supreme Court observed “that land use control is particularly a local function. Cities or counties may develop a comprehensive land use plan to promote the public health, safety, comfort, morals, convenience, and general public welfare.” The Supreme Court also said in the same case:

“The general power to regulate zoning does not specifically include the power to require that other political subdivisions comply with zoning regulations. However, a survey of other statutes granting local authority to perform and regulate government functions shows that none of the powers delegated to government units contain explicit authority to require compliance by another political subdivision. Thus, while [units] may ‘regulate the use of public ways,’ Ind.Code § 36–9–2–7, no specific authorization is given to enforce such regulation on any other political subdivision. Though ‘a municipality that operates sewage works … may require: (1) Connection to its sewer system of any property producing sewage or similar waste; and (2) Discontinuance of the use of privies, cesspools, septic tanks and similar structures,’ Ind.Code § 36–9–23–30(a), no specific enforcement is provided against other political subdivisions. Strict interpretation of the limitation that a unit may not impose a duty on a political subdivision without express statutory authority would lead to the conclusion that counties may not enforce speed zones against city employees and cities may not prohibit counties from dumping raw sewage in rivers and streams. Adherence to such strict letter would lead … to absurdity .” Zoercher v. Indiana Associated Telephone Corp. (1937), 211 Ind. 447, 455, 7 N.E.2d 282, 285 (quoting Stout v. Board of Commissioners (1886), 107 Ind. 343, 347, 8 N.E. 222, 224).  City of Crown Point, 510 N.E.2d at 686 (emphasis in original).

The Supreme Court further noted that:

“The essential purpose of zoning, to rationally coordinate land-use planning to promote orderly development and preservation of property values, City of Fargo, 256 N.W.2d at 697, generally can best be furthered by local zoning authorities which have been established to accomplish that very purpose. Local zoning proceedings also provide for public debate in an administrative hearing which can address the interests of all parties. However, there will be occasions when the land use plan of a community must fall before other critical government objectives. The decisions of local zoning boards in any context have been reviewed to determine if they are arbitrary, capricious or patently unreasonable. Ash v. Rush County Board of Zoning Appeals …, 464 N.E.2d 347 [ (Ind.Ct.App.1984) ]. When a zoning authority has denied an intruding government’s request for approval of a given land use, an appeal can lie to the courts, which will balance the interests to determine which must prevail. Factors to be considered include the propriety of the land use, such as the economic and environmental impact on the area, the kind of function or land use involved, the availability of alternative locations, and any attempts to minimize detriments to adjacent landowners, as well as a consideration of competing interests, such as the nature and scope of the intruding government unit, the essential use to the local community and the broader community, the need for the specific site as compared to the adverse impact, the social utility of the proposed use, and the possible frustration of a government function. These are the sort of decisions assigned to local executive and legislative bodies. Where their determinations are irreconcilable, the legislature has provided for a review of the zoning decision by the judiciary.”

Id. at 690–91.

The Court noted, “the Authority’s best argument for standing out from this general legal rule is that subsection 16 says it may fix and determine exclusively the uses.” However, the legislature has “elsewhere given these authorities actual zoning authority beyond the boundaries of its own property to the extent that is necessary to assure safe descent and ascent of aircraft. That limited authority belongs to the Authority alone.” Ind.Code § 8–22–3–14(d) (1990). From there, the Court surmised that “when the General Assembly intends to confer exclusive zoning authority on a special district like airports it has used language doing so. It is plausible enough to conclude that when the legislature desired to grant airport authorities zoning powers, it did so in section 14(d) and did not do so in subsection 16.”

Lastly, the Court turns to the covenants. The covenants provide that they “may be enforced by the Boone County APC, the Boone County Commissioners or such planning authority and municipal corporation as may subsequently acquire jurisdiction for zoning of the airport.” Zionsville claims that as Boone County’s successor, it has zoning control over the geographic area that includes the airport. The Airport Authority’s contends that when the airport board became the airport authority, Boone County “lost its authority to zone the airport and thus Zionsville could not succeed Boone County.”

The Court noted Section 1 of the covenants states, “should any provision of the Ordinance be deemed invalid, adjudicated unenforceable, or be amended … as of the date of the ordinance, these covenants shall be void and of no force and effect.” Since the Airport Authority asserts that Boone County’s ordinance became “inasmuch as subsection 16 gave the newly-created Authority complete zoning jurisdiction,” the Court held that the covenants have no effect on those grounds since the Court also held that “subsection 16 does not prevail over the general zoning powers of counties and cities.” However, “whether the Authority may gain relief from the covenants on other grounds” is left unresolved.

The Court reversed the holding from below.

Town of Zionsville v. Hamilton County Airport Authority, 2012 WL 2343370 (Ind.App 6/20/2012)

The opinion can be accessed at:,&hl=en&as_sdt=2,33&as_vis=1

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