Posted by: Patricia Salkin | October 28, 2007

Federal Aviation Regulations do not Preempt Application of Local Zoning Regulations for Radio Broadcast Tower

The North Carolina Court of Appeals upheld a county denial of a conditional use permit to construct a 1,350 foot radio broadcast tower based on the county’s determination that “hazardous safety conditions will result from the approval of the use” due to the proximity of a private airfield.  The Court agreed with superior court’s conclusion, that upon a review of the record, the findings were based upon competent and substantial evidence in the record, which included testimony of pilots, an aviation expert and the state department of transportation. The Court further agreed that the federal aviation regulations did not preempt the county zoning regulations regarding the location of the proposed tower.

Although the FAA issued a Determination of No Hazard in 2002, the document clearly indicated that it did not relieve the sponsor of any applicable state and local laws, and that the study conducted did not include the traffic pattern of the private air park. While at least one court has held that state or local zoning regulation of radio towers is preempted by the federal aviation regulations (see, Big Stone Broad, Inc. v. Lindbloom, 161 F. Supp. 2d 1009 (N.D.S.D. 2001)) the majority of courts that have considered the issue have held that federal aviation law does not preempt all local or state land use regulations which may affect aviation(see, e.g., Hoagland v. Town of Clear Lake, 344 F. Supp.2d 1150 (N.D. Ind. 2004), aff’d 415 F.3d 693 (7th Cir. 2005), cert. denied, 547 U.S. 1004 (2006)). The Court further determined that in the present case there was no conflict between federal aviation law and the county zoning law, and that the Determination of No Hazard letter specifically noted that local regulations must be complied with and that all traffic issues were not considered. In a 2004 letter to the chair of the county board of commissioners, the FAA’s Airport District Office Manager wrote that the county is obligated to protect the terminal airspace of the county airport and that “This is control that must be exercised at the local and/or state level as the federal government does not have the power to protect that airspace for you.”   The Manager pointed out that while there is no federal requirement to protect the airspace of private airports, it is a good thing to do, and wrote, “It is important that communities recognize these assets and provide the necessary protection both in terms of land usages and height restrictions.”  

Davidson County Broadcasting, Inc. v. Rowan County Board of Commissioners, 2007 WL 2700696 (N.C. App. 9/18/07).

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