“Nothing so needs reforming as other people’s habits. Fanatics will never learn that, though it be written in letters of gold across the sky. It is the prohibition that makes anything precious.” Mark Twain
The month of May brought some good news to those who care about aviation, users of airports and the value of small, general aviation airports to our country as a whole. The trials of two lawsuits due to, in my opinion, some of Mark Twain’s fanatics, seeking prohibition of an airport long recognized as a regional asset, in one case, and a popular, long-established commercial skydiving operation, in the other, concluded with resounding written verdicts by the trial judges in favor of the airport and the skydiving operator.
While trial court verdicts, even if written, have far less value as legal precedent than those from courts of appeal and Supreme Courts, the written opinions in each case included clear explanations of the sometimes esoteric law affecting flyover noise and airports as well as a ringing affirmation of the value of general aviation airports to the general public.
Solberg-Hunterdon Airport, New Jersey (N51)
Following a 48-day bench trial (trial before a judge, no jury, so the judge makes findings of fact and law) over the issue of whether the Township of Readington, New Jersey’s attempt to take over the Solberg Airport via eminent domain, the judge ruled against the Township and in favor of the airport owners in one of the most harshly-worded opinions that has ever been my pleasure to read.
Judge Armstrong opened with a finding that the Township’s condemnation plan “was orchestrated to prevent airport expansion under the pretexutal banner of open space policy amounting to a manifest abuse of the power of eminent domain. Moreover, the resulting lack of transparency in the Township’s action subverted the political process and weakened private property rights protection.”
Powerful stuff—but the judge was only firing an opening salvo in his exposure of the tactics used by Township personnel to destroy the commercial viability of an historic general aviation airport and wipe out the livelihood of its private owners/operators. The tactics included, but were not limited to, hiring a public relations firm to actively spread disinformation about the airport and its owners to inflame community fears about the airport and using the subterfuge of open space acquisition to condemn and take over the airport through eminent domain proceedings.
Judge Armstrong related some of the history of the airport in his Opinion as part of his findings of the value of the airport to the community and State of New Jersey. Founded as an intermodal transportation facility for the region’s general aviation needs by aviation pioneer Thor Solberg, Sr. in 1939, Solberg-Hunterdon is a 726-acre, privately owned airport open to the public. It was later designated as a reliever airport for Newark’s Liberty Airport. The National Air Transport Association designated it as one of the nation’s 100 most-needed airports.
As time went by, population increased and use of the airport increased—as did use of roads in the area. The Airport owners planned for growth to handle the increased need for its service to the public.
Anti-airport forces in the Township of Readington blocked all attempts for extensions of the two runways, including approving paving of one runway to a length of just under 4000 feet and then reneging on the deal and physically stopping the paving when 3000 feet had been completed—creating a potential safety hazard as most general aviation piston-powered twins have an accelerate-stop distance of over 3000 feet on a standard day.
After the airport published its Master Plan calling for a paved, 5600-foot runway, the Township began a complicated series of actions to condemn and acquire much of the land around the airport to prevent any runway extension. The actions would destroy the commercial viability of the airport and put the Solberg family out of business. The eminent domain actions evolved into a complete taking of the Airport under a claim by the Township that it would preserve open space while the Township would continue to run the airport as a recreational facility.
In the meantime, the Township’s PR firm was actively carrying out a campaign against the Solbergs and the Airport. Websites and flyers played on public fears of “jets” at the Airport—without mentioning that the jets that could use the airport were usually quieter than many of the airplanes currently capable of using it.
Much of the verdict reached by Judge Armstrong was based on New Jersey law, although much of it is consistent with the law of other states. The judge explained that when a Township takes action to acquire property for public use under eminent domain, there is a presumption that its action is proper—which can only be “reversed on improper motives, bad faith, or some other consideration amounting to manifest abuse of the power of eminent domain.” That erected a very high hurdle for the Solbergs to clear to prevent the Airport from being taken from them.
After hearing the testimony and examining hundreds of pieces of evidence, the judge ruled that the Solbergs had not only cleared the legal hurdle, they had provided enough objective evidence to enter low earth orbit.
Judge Armstrong ruled that, “objective evidence depicts nothing less than deliberate subterfuge on the part of Readington Township in its efforts to obfuscate the desire to preclude airport expansion under the auspice of environmental policy solely in response to community fears regarding the proposed use of the airport.”
The judge went on to rule that “Township officials testimony was un-forthright, evasive, nonresponsive, untrustworthy, argumentative, lacking credibility and therefore unworthy of belief.” The judge said that the Township used a “sophisticated PR process that demonized the Airport by disseminating a catalogue of fears and appeals to mistrust which characterized Airport operations and a 5600-foot runway as much like the jets used by Continental out of Newark.”
I couldn’t help but wonder whether New Jersey law allows a private right of action against Township officials, personally, when thy act in egregious violation of their fiduciary duties and obligations.
Value of General Aviation
What struck me as important to our national airspace system and network and the aviation community beyond the arguably criminal actions of the Township officials, was the trial judge’s express recognition of the value of Solberg and other, small general aviation airports to the State of New Jersey and the United States.
In response to the Township’s incredible assertion that Solberg Airport provided no public benefit, the judge started by saying that it has long been the law that land may be taken through eminent domain to build an airport because an airport serves a public benefit.
The judge went on to say that general aviation provides services that airlines cannot and enumerated a list of such benefits, including emergency medical services, fire fighting, time-sensitive air cargo and flight instruction. There is a national system of general aviation airports that are interconnected and interdependent, involved in a national plan of an integrated airport system that is open to the public. General aviation airports support commerce and provide a safety net for emergency aircraft services. The judge referenced a New Jersey general aviation study that said that general aviation airports provide benefits to the surrounding community without providing economic rewards to the airport owners—general aviation airports contribute to the quality of life of the community as well as positively impacting the local economy.
The judge went beyond hard economics in describing the benefits of general aviation airports by ruling that they are the “cradle of aviation” for our country, essential to its economic vitality and national security by providing “the laboratories of flight where future airline and military pilots are born.” On page 37 of the Opinion, Judge Armstrong touched on some of the intangibles: “Finally, there is a certain freedom that defines general aviation. Men and women throughout history gazed longingly at the soaring effortless freedom of birds, pondering release from the symbolic bondage of gravity. Only here can a man or woman walk onto some old farmer’s field and turn dreams into reality. As Charles Lindbergh once said: ‘What freedom lies in flying, what Godlike power it gives to men . . . I lose all consciousness in this strong unmortal space crowded with beauty, pierced with danger.’”
Judge Armstrong went on to rule, “Thus, general aviation airports serve a myriad of public purposes. The record substantiates the importance of general aviation and Solberg Airport’s role in particular. The Defendant (Solbergs) offered documentary and testimonial evidence, which this Court found persuasive in its determination of public purpose. The objective evidence demonstrated that general aviation generates over a billion dollars in revenue and creates thousands of jobs across the state. It has a substantial economic impact on communities and contributes directly to local business transportation capability. The evidence also demonstrated that New Jersey’s general aviation infrastructure provides many health, welfare, and social benefits: emergency medical services, schools, fire and emergency services, law enforcement, tour operators, and traffic surveillance directly benefit from general aviation airports.
Judge Armstrong’s words are moving and inspiring to those of us who have fought what sometimes feels like a rearguard action to keep airports open. The ruling provides powerful ammunition when we explain the value of general aviation airports to those who do not understand the worth of the little airport at the edge of town and seek to close it. I recommend reading the Opinion and keeping it close for reference in the future.
The other case lead to a five-day bench trial in the County of Boulder, Colorado. A small group calling itself the Citizens for Quiet Skies (and individual members) sued Mile-Hi Skydiving Center, a commercial skydiving operator that has been flying out of and jumping on to Vance Brand Airport in Longmont, Colorado since 1995. The suit alleged that because of the negligence of Mile-Hi Skydiving, the noise emitted by the airplanes operated by Mile-Hi carrying its skydiving customers damaged the Plaintiffs. The six individual Plaintiffs named as part of Citizens lived within five miles of the Longmont Airport (one couple so close that on purchase of their home, they had to sign an agreement acknowledging that there would be aircraft passing over their property).
During the trial, Plaintiffs testified that the noise from Mile-Hi’s operations was continuous and led to a significant loss of their ability to enjoy their homes—and that the noise had greatly increased in recent years. They also felt that the values of their homes had diminished because of the noise.
Judge Judith LaBuda heard extensive testimony from people living in the area affected by noise from Mile-Hi’s aircraft (Twin Otter, King Air, Cessna 206), as well as experts in noise assessment and property valuation. In a 13-page Order, she ruled in favor of Mile-Hi on all counts of the Complaint; making findings of fact, including evaluations of the witnesses and findings of law, particularly on the evaluation of aircraft noise in accordance with the Federal Aviation Regulations.
All of the complainants had purchased their homes after the Airport opened, and all but one after Mile-Hi had started operating—something the judge took into consideration. Complainants argued that number of flights had increased, however, there was no discussion as to comparing that consideration to the increase in population of the area or traffic on the streets lived on or frequented by plaintiffs.
There was discussion of a flight box—the climb and descent area used by Mile-Hi aircraft. Some of the complainants lived beneath it. Interestingly, two of the Plaintiffs own condos located beneath the flight box, which are rented to tenants. None of the tenants complained about Mile-Hi noise. Other persons living beneath the flight box testified that they were not bothered by the noise.
Mile-Hi is responsible for about six percent of the Airport operations. However, there are a number of airports in the near vicinity and the complainants live in an area along the Front Range of the Rocky Mountains that has a high level of general aviation and airline traffic.
In 2013 Vance Brand Airport received 1582 noise complaints. 1149 of the complaints, 72 percent, were made by one person, one of the Plaintiffs in the lawsuit. Three percent were made by other members of Citizens. 25 percent of the complaints were made by people not party to the lawsuit. The judge found the number of complaints made by one person skewed the validity of the number of complaints.
Judge LaBuda explained in her Opinion that the federal government had preempted the field of aircraft noise regulation—state and local governments must follow federal regulations, which effectively establish 65 dB as the limit for aircraft noise on communities. That is approximately the level of a normal conversation at three feet. The decibel scale is logarithmic. An increase of 10 decibels is an increase in sound pressure by a factor of 10. (An increase of three dB is an increase of about a factor of two, or a doubling.)
Sound experts took readings at the homes of the complainants and found that the noise from Mile-Hi’s airplanes was not louder than other background noise or other planes flying in the area. The overall sound level at two complainant’s homes was 55.3 and 56.7 dB—which the judge found to be within the normal range for residential communities. The fly over noise level at those locations was 30.2 dB to 32.2 dB—about the level of a whispered voice in a library.
One expert testified that the noise produced by Mile-Hi’s aircraft was not unreasonable to the average person in the community. If 55 dB were to be established as the noise nuisance level, all airports would have to be closed because all aircraft exceed 55 dB on takeoff.
There was expert testimony that although all of the residential properties in the area had appreciated substantially in the last few years, those further from the airport had appreciated at a greater rate, but there was no evidence as to the reason for the disparity.
Judge LaBuda ruled that for there to be a nuisance, the noise must be significant enough that a normal person in the community would find it offensive, annoying or inconvenient. She ruled that one of the complainants was disturbed by the noise but that she had a greater reaction to it than other people. The judge went on to rule that Mile-Hi’s operations are not offensive, annoying or inconvenient to any degree significant enough that a normal person in the community would consider them unreasonable. “Though the individual Plaintiffs may at times find the noise to be irritating or frustrating, the Court finds the gravity of harm to Plaintiffs in this matter is not significant or severe. An individual may also find it irritating or frustrating to listen to the sound of motorcycles and trucks on nearby streets, to hear lawn mowers throughout the day, to hear children’s yells or laughter in a back yard, or hear the loud playing of music from a neighbor’s home.”
The judge found that “the utility of Mile-Hi conducting a legitimate business that complies with FAA noise regulations and provides tax revenue and recreational and other service to the community outweighs the Plaintiffs’ concerns of noise, particularly when Plaintiffs moved into an area known to have an airport in close proximity and the particular noise from Mile-Hi was in the low 30 dB level for flyovers.” She went on to rule that “A local government or airport operator cannot prohibit an aircraft that is otherwise in compliance with FAA regulations from flying in order to decrease noise levels…[they] have no authority to impose such restrictions on aircraft operations.”
In the ruling, the judge noted that all of the involved aircraft were in compliance with the noise requirements of FAR 36.501.
The judge then ruled in favor of Mile-Hi.
As one who has worked on airport access and noise matters, I’ve interviewed a number of people who have complained bitterly about aircraft noise—at least one time in circumstances where the noise around us was well in excess of aircraft flyover noise. In many instances, the complainers were not offended by a motorcycle going by at over 60 dB or by a loud lawnmower next door. However, if they could see an airplane, they would object to the noise—even if others couldn’t hear it. Irrational people? Perhaps. Desiring to prohibit something enjoyed lawfully by others? Absolutely.
The two recent cases demonstrated that there are some good laws for aviation in existence, and there is significant evidence supporting the value of general aviation in the U.S. I hope the cases will provide ammunition for those who are trying to support airports and aviation against those who are committed to preventing general aviation from existing—reforming other people’s habits. The two cases also demonstrated that a determined minority who sadly, appear to believe what they believe against objective evidence to the contrary, can make life terrible and hideously expensive for those who are pursing the dreams of legitimate, legal aeronautical activities such as running little airports and skydiving.
That these lawsuits happened is a sad commentary on empowering the, in my opinion, irrational. For all of us who care about aviation and our national airspace system, the massive costs borne by those who successfully defended general aviation has meant two rulings that should prove helpful in the battles to come.
Rick Durden holds and ATP and CFII, is an aviation attorney who has handled matters involving airport access and flyover noise and is the author of The Thinking Pilot’s Flight Manual or, How to Survive Flying Little Airplanes and Have a Ball Doing It, Vol. I.