HHHH 1 I B R:-AR:Y- OF THE U N'lVERSITY Of ILLINOIS 629-13 no.\-\0 Return this book on or before the Latest Date stamped below. University of Illinois Library I 1 *"*5«W6 - 7 iasa OCT -4 AUG 5§ AUG 2 2"< B53 14 0CT2- ND'J 3 C 1364 : i APR 2 975 WW 9 1980 964 AP H ° 8 1982 Tl MAR itt 2 8 1985 L161— H41 OX.*?. 1 9 n o- 4- AERONAUTICS BULLETIN : NUMBER FOUR UNIVERSITY OF ILLINOIS THE INSTITUTE OF AERONAUTICS URBANA, ILLINOIS AIRPORT ZONING By J. Nelson Young UNIVERSITY OF ILLINOIS BULLETIN VOLUME 46; NUMBER 29; DECEMBER, 1948. Published seven times each month by the University of Illinois. Entered at second-class matter December 11, 1912, at the post office at Urbana, Illinois, under the Act of August 24, 1912. Office of Publication, 358 Administration Building, Urbana, Illinois. THE INSTITUTE OF AERONAUTICS, established in 1945, is operated as the administrative agency responsible for the fostering and correlation of the educational and research activities related to aviation in all parts of the University. Other functions include academic instruction, flight training, management of the University of Illinois Airport, and aeronautical research. In connection with the latter function, the Institute issues two types of publications . . . first, a group of reports on research results, and second, a series of bulletins on aviation subjects of an extension service nature to the citizens of the State. The following publications have been issued: Bulletin One: Municipal Airport Management, Leslie A. Bryan, 1947. Bulletin Two: Landscape Planting for Airports, Florence B. Robinson, 1948. Bulletin Three: Labor Relations in the Air Transport Industry Under the Amended Railway Labor Act, E. B. McNatt, 1948. Bulletin Four: Airport Zoning, J. Nelson Young, 1948. Publications of the Institute of Aeronautics will be sent free of charge upon request. UNIVERSITY OF ILLINOIS THE INSTITUTE OF AERONAUTICS Leslie A. Bryan, Ph.D., LL.B., Director Bernice Schrader, A.M., Editor AIRPORT ZONING By J. Nelson Young Assistant Professor of Law College of Law, University of Illinois THE LIBRARY OF THE DEC 2 3 1948 . o; ; i Published by the University of Illinois, Urbana 1948 FOREWORD THIS MONOGRAPH is the fourth in a series of bulletins on avia- tion subjects which will be issued from time to time by our Institute of Aeronautics. Like some of our other bulletins, it represents a pio- neering venture into a subject of considerable current interest. It is particularly timely as the trend to municipal ownership and operation of airports continues and the need for airport zoning is becoming more and more apparent. Professor J. Nelson Young, the author, is exceptionally well quali- fied to write this bulletin. He is a member of the Illinois Bar, as well as a Certified Public Accountant. The Institute of Aeronautics is grate- ful to Dean A. J. Harno for his interest and help in making Professor Young, a member of the University of Illinois Law Faculty, available to carry on this study. Professor Young wishes to acknowledge the cooperation of the following individuals who furnished materials, information, and sug- gestions which proved invaluable in the preparation of this monograph: Robert P. Boyle, Acting General Counsel, and Edgar N. Smith, Acting Assistant Administrator for Airports, both of the Civil Aero- nautics Administration, Washington, D. C. G. Richard Challinor, Aviation Commissioner, Chamber of Com- merce, Kansas City, Missouri. Joshua H. Vogel, Planning and Public Works Consultant, Associa- tion of Washington Cities, University of Washington, Seattle, Wash- ington. Hugh J. Dobbs, General Attorney, Springfield Airport Authority, Springfield, Illinois. Charles S. Rhyne, General Counsel, National Institute of Municipal Law Officers, Washington, D. C. Ray Nyemaster, Attorney at Law, Des Moines, Iowa. E. T. Lynch, Senior Civil Engineer, Bureau of Aviation, Depart- ment of Commerce, State of New York, Albany, New York. Donald E. Blodgett, Assistant Director, Department of Aeronautics. State of Illinois, Capital Airport, Springfield, Illinois. John W. Reps, Executive Secretary, Broome County Planning Board, Binghamton, New York. Frederick N. MacMillin, Executive Secretary, League of Wiscon- sin Municipalities, Madison, Wisconsin. E. A. Wilson, Executive Secretary, City Planning and Zoning Com- mission, Tucson, Arizona. 13 X i C. C. Ludwig, Executive Secretary, League of Minnesota Munici- palities, Minneapolis, Minnesota. In addition, the author is indebted to a host of others who have written upon the various facets of this subject. The Institute of Aeronautics is glad to make available the infor- mation contained in Professor Young's monograph. In it, as in all publications of the Institute, the author has been given complete free- dom to express any opinions he may wish with the understanding that he takes sole responsibility- therefor. T . T1 Leslie A. Bryan 1A , n Director December, 1948 Digitized by the Internet Archive in 2013 http://archive.org/details/airportzoning04youn OUTLINE OF CONTENTS Topic Page Introduction 7 Zoning as a governmental function 7 Legal background of zoning 7 Comprehensive zoning 9 Airport Zoning 12 What is airport zoning? 12 Need for airport zoning 12 Obstructions to airport approaches 13 Failure to eliminate obstructions 14 Alternative methods of regulating obstructions . . . . 15 Validity of airport zoning 17 Airport Zoning Legislation 21 Need for legislation 21 Adoption of enabling statutes 21 Problems requiring legislative treatment 22 Airport Zoning Ordinances 29 Adoption of airport zoning ordinances 29 Preparing an airport zoning ordinance 29 Provisions of airport zoning ordinances 33 Composite model ordinance 40 Creating a joint airport zoning board . 40 Airport Zoning and Regional Planning 41 Need for zoning airport locations 41 Airport zoning for the future 43 Appendixes 46 LIST OF APPENDIXES Topic Page Appendix I: Model State Airport Zoning Act 46 Appendix II: Current Enabling Statutes for Airport Zoning .... 54 Appendix III: Model Airport Zoning Ordinance 55 Appendix IV: Zoning Map of Boeing Field Airport 59 Appendix V: CAA Airport Approach Standards 59 Appendix VI: Zones and Height Limitations; Minnesota Model Airport Zoning Ordinance 60 Appendix VII: Zones and Height Limitations; New York Model Airport Zoning Ordinance 61 Appendix VIII: Zones and Height Limitations; Proposed Tucson Munici- pal Airport No. 2 Ordinance 62 Appendix IX: Composite Model Airport Zoning Ordinance .... 63 Appendix X: Proposed Ordinance for Use by Minnesota Municipalities in Creating a Joint Airport Zoning Board 70 Appendix XI : Municipal Airport Outside City Limits; Request to County Board to Adopt Airport Zoning Regulations 72 Appendix XII: References 73 INTRODUCTION Zoning as a governmental function. Zoning as an essential func- tion of local government has been a relatively recent development in the United States. Only within the past twenty-five years has the word "zoning" become a term of common usage. Its development has been an evolutionary process. Although it was not so identified at the time, zoning in its initial stages was directed toward the restriction or elimi- nation of so-called nuisance activities, such as the operation of laun- dries, livery stables, slaughterhouses, and brickyards. From this limited beginning, zoning has expanded to encompass the comprehen- sive and systematic planning and control of all land uses within entire urban areas. It has now received universal acceptance. Few munici- palities of any appreciable size have failed to adopt general zoning ordinances regulating land uses throughout their territorial limits. More recently, zoning has been authorized in rural as well as urban areas in response to the need for regional planning. Legal background of zoning. The constitutional validity of comprehensive zoning is founded upon the police power of the state. This is the power, expansive in scope, which permits the state to adopt regulations which are essential to the promotion and protection of the public health, safety, morals, comfort, or general welfare. But the police power should not be accorded exclusive credit for this accom- plishment within the constitutional framework of our government. The validity of comprehensive zoning is the end-product of the operation of the common law rules of nuisance in conjunction with the police power. The latter is invariably stated by the courts as the basis for the validity of zoning regulations. The former, however, have per- suasively influenced the courts in extending the police power to validate comprehensive zoning ordinances regulating and controlling land uses. The common law principles of nuisance first recognized that one's right to use his property as he might see fit was not absolute. The common law imposes upon one the condition that he use his land in a manner that does not interfere with his neighbor's reasonable use of ad- joining property. One may not by the use of his land impair the health or safety or unreasonably offend the senses of his neighbor. A landowner may not operate a chemical plant on his property which will produce fumes that jeopardize his neighbor's health; nor may he conduct operations producing noise or odors so offensive as to make it wholly undesirable to occupy the areas adjacent to his property. In these circumstances the common law rules of nuisance give an indi- O AIRPORT ZONING vidual protection against another's improper use of property. If an offensive activity creates an annoyance to the whole community in general, it constitutes a public nuisance by common law principles; and the offensive use may be suppressed by the state or local governmental authorities in the exercise of the police power. The state and its political subdivisions enjoy an even greater right, however, to restrict one in the use of his property for the protection and benefit of the whole community. Under the police power, a re- stricted use need not be improper in the sense required by common law principles of nuisance; that is, it need not be an activity which could be presently abated as a public nuisance. A state or political subdivision may declare that under certain circumstances an activity shall be a nuisance though it is not in itself a nuisance by common law stand- ards. Regulations of this nature are valid if there is a reasonable basis for the determination of the legislative body so that its action may not be deemed arbitrary. Furthermore, the police power may be exercised in this manner without providing compensation for the property owner upon whom the restriction is imposed. This is justified on the ground that the particular restriction constitutes a reasonable regulation of the use of property and not an actual taking of the owner's property by the state. A notable example of the early exercise of the police power in this manner, which foreshadowed its subsequent extension to the area of comprehensive zoning, occurred in Los Angeles. In 1910 the city adopted an ordinance which prohibited the operation of brickyards within certain described residential areas. The owner of a brickyard had acquired his property in 1902 before the area had been annexed to the city. His brickyard had been established with necessary build- ings, machinery, and kilns, and had been in operation for seven years. As a brickyard it had an alleged value of $800,000 as compared to $60,000 for residential purposes. Yet the community interest in free- dom from the fumes, gases, smoke, soot, steam, and dust produced by the brickyard operations was deemed sufficient to permit the city to prohibit operation of the brickyard in a residential area without com- pensating the owner for the consequent reduction in the value of his property. In upholding this restriction upon one's use of his land, the United States Supreme Court granted that the operation of a brick- yard is not a nuisance per se. It proceeded to hold, however, that it was proper, under the police power, for the legislative body of the city to declare or decide that a brickyard shall be deemed a nuisance in fact and in law in particular circumstances and in particular localities. UNIVERSITY OF ILLINOIS V Another early exercise of the police power bears upon the subse- quent validation of comprehensive zoning ordinances and the current problem regarding the validity of airport zoning. These were statutes and ordinances regulating the height of buildings. A statute of 1904, for example, divided the city of Boston into two districts: one con- sisting of the commercial area, and the other, the residential area. In the former, no building could be erected at a height exceeding one hundred and twenty-five feet above the grade of the street; in the latter, no building could exceed eighty feet in height. A supplementary act in the following year provided for administration of the regulations by a local commission which was granted authority to allow variances in the application of the original statutory limitations. Variances were limited by statute to particular areas and were subject to specific limi- tations. In sustaining the statutes as a proper exercise of the police power, the Supreme Court of Massachusetts stated with respect to the general validity of imposing restrictions upon the height of buildings that: "The erection of very high buildings in cities, especially upon narrow streets, may be carried so far as materially to exclude sunshine, light, and air, and thus affect the public health. It may also increase danger to persons and property from fire, and be a subject for legis- lation on that ground. These are proper subjects for consideration in determining whether, in a given case, rights of property in the use of land should be interfered with for the public good." These and similar cases may be considered the prelude to the decisions in the mid-twenties which firmly recognized the general validity of comprehensive zoning ordinances regulating the use of all land within a municipality. Comprehensive zoning. A comprehensive zoning ordinance di- vides an entire city into specific use, height, and area zones. Any particular lot or parcel of land within the municipality is subject to these several restrictions, inasmuch as use, height, and area limitations coexist in all districts. The Chicago zoning ordinance, for example, includes nine use classifications and establishes the following use dis- tricts throughout the city: family residence, duplex residence, group house, apartment house, specialty shop, business, commercial, manu- facturing, and industrial districts. The land uses within each district are specifically limited. Height and area restrictions are applied by volume districts. There are four classes of volume districts super- imposed on the foregoing use districts. Land within each of the re- spective volume districts is subject to certain prescribed restrictions upon ground area and height of buildings. The ordinance also imposes 10 AIRPORT ZONING setback lines in certain areas. For example, the owner of a lot which is located in a family residence and 2nd volume district would generally be limited as follows in the use of his land: (a) he could only erect a single family dwelling thereon; (b) the ground area of the building, exclusive of garage, could not exceed 40 percent of the area of the lot; (c) the height of the building could not exceed 45 feet; and (d) no part of the ground area of the building could be nearer the front street line than a distance equal to 15 percent of the average depth of all lots fronting in the block. These restrictions are fairly representative of comprehensive zoning regulations. They constitute limitations of real consequence upon the property owner's freedom to use his property as he sees fit. In some instances these restrictions substantially reduce the market values of particular parcels of land. A lot in a family residence district might have a much greater market value if it could be utilized for the con- struction of an apartment building. Similarly, land in an apartment district might be marketable at a considerably higher price if it were available for the erection of a manufacturing plant. But, despite the possible reduction in property values in particular instances, regulations of this nature are generally considered valid under the police power of the state. The benefit to the whole community in these situations is considered relatively more important than the right of the individual to be completely free in the use of his property. In planning land uses under comprehensive zoning ordinances, the nuisance factor is present in varying degrees. In some instances a re- stricted use may border on a nuisance if conducted in a particular area; in other instances, it is difficult to establish any element of nuisance in the restricted use. The erection of a duplex residence on a lot adjacent to a single-family dwelling within a family residence district would not be likely to constitute either a public or a private nuisance by common law principles. Nevertheless it is valid, under the police power, to restrict all the land in a particular area to single-family dwellings. The nuisance factor is more apparent, of course, in the prohibition of apart- ment houses or manufacturing plants in residential districts. In up- holding general zoning ordinances, the courts have recognized the element of nuisance as one of the most persuasive factors. In the land- mark decision in Village of Euclid, Ohio v. Ambler Realty Co., the Supreme Court of the United States, in 1926, upheld the validity of a comprehensive zoning ordinance. In its opinion, the court stated that "the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process UNIVERSITY OF ILLINOIS 1 1 of ascertaining the scope of, the [police] power. Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality." At another point, in discussing the detrimental effect of the location of apartment houses in single-family residence areas, the court com- mented: "Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances." The initial use of the police power merely to regulate a few unde- sirable activities has been greatly extended. Under comprehensive zoning, desirable as well as undesirable land uses are regulated and allocated. The explanation for this development lies in the obvious social and economic need for intelligent planning and control of land uses in urban areas of concentrated population. The planning of land uses accrues to the benefit of the whole community. It creates a proper environment for home and community life by segregating residential, business, and industrial buildings. Heavy traffic is removed from resi- dential areas, thereby reducing the hazards to health and safety from noise, congestion, and street accidents. It stabilizes property values in the respective areas. Police and fire protection requirements vary ac- cording to the character of particular neighborhoods. Confining various activities to prescribed locations permits the economical organization and maintenance of these essential governmental functions. Paving needs of the respective areas also vary. Allocation of land uses permits economies in paving, since heavy, more expensive pavement may be limited to the industrial and commercial zones. These considerations among others have led the courts to uphold comprehensive zoning ordi- nances. It is submitted that similar considerations for the public health, safety, and general welfare of the community will lead to the valida- tion of airport zoning regulations. AIRPORT ZONING What is airport zoning? Airport zoning in its operation does not differ from comprehensive zoning. It also involves the imposition of restrictions upon land use. Airport zoning is the regulation of the use of land surrounding an airport, to prevent the creation of physical hazards and obstructions in the airspace approaches to the airport. It consists primarily of regulating the height of structures on a graduated basis, beginning at the airport boundary and extending a radius of two miles from the ends of the runways and landing strips. The most re- strictive limitations apply in the areas immediately adjacent to the airport and are gradually relaxed until the outer boundary of the approach area is reached. A cross section perspective of the area zoned suggests a "shallow bowl," as an eminent zoning authority has de- scribed it. In addition, restrictions are also placed upon land uses in the approach areas which would unduly interfere with visibility and radio communications. Airport zoning differs from comprehensive zoning, however, in its immediate objective. It is this difference which has occasioned some to comment that "zoning" is not a proper term to apply to regulations adopted for the purpose of protecting airport approaches. Compre- hensive zoning involves the allocation of land uses in the entire area of a municipality according to an over-all integrated program for the benefit of the whole community. The territory of the municipality is surveyed with reference to the particular needs of the community for residential, commercial, and industrial areas. The land within the city is then allocated to fill these respective needs. A comprehensive zoning ordinance cannot be designed without due consideration of existing land uses, but its principal purpose is not to maintain and preserve the present use of any particular lands. Airport zoning on the other hand is directed toward effectively maintaining the current use of certain land as an airport. This is not to say that the zoning regulations essential to the protection of an air- port do not benefit the whole community. On the contrary, it is impos- sible to ignore the community benefit inherent in these regulations. Promotion of the community welfare is the essential factor in the adoption of comprehensive zoning ordinances. This is no less true of airport zoning ordinances. Need for airport zoning. The need for airport zoning is two- fold. The first is to prevent the creation of physical hazards in the airspace approaches of an airport. The need for safe and unobstructed 12 UNIVERSITY OF ILLINOIS 13 approaches to an airport is apparent. An airport surrounded by tall buildings, smokestacks, radio towers, or heavy smoke-producing in- dustries would be useless except for very small planes and helicopters. The second is to prevent the legal obstructions to the operation of an airport which are initiated by adjacent property owners. These ob- structions take the form of actions for damages, or applications for injunctions restraining the flight of aircraft over their lands or the operation of airports adjacent to their lands. This type of obstruction is not an obvious one but has become a potential hazard to eliminate by zoning. An apt illustration is provided by a recent experience in the Philadelphia area. In 1944 a neighboring farmer, by obtaining an in- junction restraining the flight of airplanes over his land below one hundred feet, made it impossible for commercial planes to use the Allentown airport. As a result, commercial service to Philadelphia was discontinued by the airline using these airport facilities. An adjacent property owner, in an effort to curtail the flight of planes over his premises by resorting to actions for damages or ap- plying for injunctive relief, may rely upon three legal theories. One is that constant flights in the airspace above his land constitute a taking of his property; another, that the flights are conducted in a manner w r hich constitutes a nuisance; and third, that the flights are technical trespasses. The adoption of valid airport zoning regulations should eliminate the application of the first theory and materially reduce the efficacy of the second and third. If valid height limitations were im- posed on structures on adjacent land, the landowner would not have a property interest in the airspaces above the established limit. The public would have reserved those airspaces for airplane operations. For this reason also, flights through the airspaces above established height limits would not constitute a nuisance (or technical trespass) if the flights were conducted in a manner consistent with the operational requirements of the planes and the safety of the residents below. The adoption of airport zoning regulations should provide a safeguard against the unfortunate experience of the Allentown airport. Obstructions to airport approaches. The physical obstructions to the airspace approaches of an airport which might be regulated by airport zoning may be classified as follows: 1. Structural hazards. The principal obstructions which are the subject of airport zoning regulations are those which directly interfere with the passage of planes through airspace. These consist of build- ings, towers, electric transmission lines, or any structures or fixtures 14 AIRPORT ZONING on adjacent land which project into the paths traveled by planes ap- proaching or leaving an airport. 2. Visibility hazards. Interferences with the visibility of the airport and surrounding areas from planes also constitute obstructions which require regulation. In this group are activities which create gases, smoke, dust, and glare in the atmosphere encompassing the airport. 3. Communication hazards. In this category are activities in the adjacent areas of the airport which create electrical interferences with radio communications between planes using an airport and airport traffic officials. 4. Traffic hazards. This is a recent addition to the list of hazards which might be the subject of regulation by airport zoning. Traffic hazards often occur as the result of the improper location of additional airports in the vicinity of existing facilities. Unless additional airports are located at a sufficient distance, planes using newly established air- ports will obstruct the approach areas of existing fields. Airport zoning regulations may be used to restrict the location of future airport facilities. Failure to eliminate obstructions. Since any of the enumerated obstructions may render an airport substantially useless, it is impera- tive that appropriate steps be taken to prevent such interferences. If it were not possible to do so, the huge public and private investment in airport facilities would become worthless, and an important medium of public transportation would be seriously disrupted. The maintenance of unobstructed approach zones is a condition precedent to the approval of an airport by the Civil Aeronautics Administration for use by licensed commercial planes. Under the Federal Airport Act the receipt of financial aid in support of publicly owned airports is contingent upon the establishment and maintenance of approach zones free of hazards. The developments in air transportation in recent years have accen- tuated the need for regulating the use of lands surrounding an airport. Larger and heavier aircraft have been constructed to meet commercial and military requirements. A few years ago the glide ratio for the heaviest planes was 7 to 1 — that is, a gliding plane would descend 1 foot for each 7 feet of horizontal distance traveled. Today glide ratios as high as 50 to 1 are applicable, and the CAA standard ratio for instrument landings is 40 to 1. With the increase in the glide ratios of planes, the effect of struc- tural hazards in the approach areas of an airport is much more pro- nounced. Assume that aircraft operating on a 40 to 1 glide ratio are using a particular airport. These planes must travel 40 feet hori- UNIVERSITY OF ILLINOIS 15 zontally in order to descend 1 foot. Consequently any structure in the approach area of the airport should not exceed in height 1/40 of its distance from the landing boundary of the field. The landing area of the airport will be reduced 40 feet for each foot by which any structure exceeds this height limitation. If, for example, a building 110 feet in height were erected 4000 feet from the landing boundary of the field, it would reduce the effective landing area of the field by 400 feet. Here is an obstruction which appears slight by measurement — it is only 10 feet above the computed height limitation; yet it produces a very substantial effect upon the capacity of the airport to accommodate planes of the 40 to 1 class. Failure to restrict obstructions of this nature may seriously impair airport operations. Coincident with the development of heavier aircraft, there has been a rapid expansion in the public use of air transportation facilities. This has produced considerable commercial, industrial, and residential de- velopment in the areas adjacent to airports. The erection of structures to meet these demands has encroached upon the lower airspace ap- proaches of airports. At the same time heavier planes require these airspaces to an increasing extent. Thus, a combination of factors inci- dent to the recent developments in air transportation has brought the problem of airport zoning into sharp focus. It is conceivable that me- chanical developments may ultimately remove the necessity for planes to use the lower airspace approaches so extensively. Until this occurs, however, our present problems remain. Alternative methods of regulating obstructions. The actual existence and potential creation of obstructions in the airspace ap- proaches of airports suggests a consideration of the various methods of elimination, prevention, or control. Several alternative methods are available or have been proposed as solutions to the problem. Some are effective, some merely speculative, and others extremely costly. The following are among those which have been considered: 1. Marking and lighting obstructions. Marking and lighting struc- tures in the airspace approaches to an airport does not eliminate the hazard. It is merely a means of alleviating the danger. It provides no solution of the problem since the structures, although adequately marked and lighted, may render the airport entirely useless by larger planes. 2. Way of necessity over adjacent land. A theory has been pro- pounded which would require the adjacent property owner to keep the airspaces above his land free of obstructions to the ingress and egress of aircraft to an airport. This legal theory for the protection of 16 AIRPORT ZONING airport approaches is based on the proposition that use of the airways is comparable to the use of the public highways. If one owns land which is cut off from a public highway by surrounding property, he is deemed to have a right of way by necessity over certain adjoining land to the public highway. By analogy it has been suggested that, in order to reach the public airways, airplanes should be accorded unobstructed air passage over the lands surrounding an airport. There are basic ob- jections, both legal and practical, to the adoption of this theory, and thus far it has received no acceptance. There is little or no possibility that this proposal can be utilized as a means of protecting airport approaches. 3. Court action to eliminate or enjoin obstructions. It is possible to rely upon the courts for the elimination or prevention of some obstruc- tions to airport approaches. This remedy is certainly available in those situations where "spite" obstructions are erected for the purpose of interfering with planes using an airport. These structures can be eliminated on the ground that they constitute public nuisances. The availability of this remedy in other instances where wrongful motive cannot be established is substantially limited. This method of main- taining unobstructed airspace approaches does not provide that degree of certainty which is necessary to effective airport approach protection. 4. Expansion of the area of the airport. The area of an airport might be extended so that planes can leave and approach the airport boundaries at heights well beyond the range of obstructions. There is no question as to the effectiveness of this method of eliminating ap- proach hazards. But the cost of this type of protection would be pro- hibitive. 5. Acquisition of adjacent property. This method of control is es- sentially an installment version of the preceding proposal. It involves the purchase of adjacent property upon which obstructions are erected, followed by the removal of the hazardous structures. This method is effective but also costly. Furthermore, any obstruction erected would continue until the purchase could be negotiated or condemnation pro- ceedings consummated. 6. Acquisition of avigation casements. Another possibility rests in the acquisition of easements of flight over the property surrounding an airport. At the outset this method presents a very practical problem of valuation. It is certainly difficult, if not impossible, to determine ac- curately the value of such an easement. After the easement has been granted, the property owner will still have substantially all his property and will usually be in a position to continue to devote it to most UNIVERSITY OF ILLINOIS 17 ordinary uses. The formula for valuation of an avigation easement is the difference between the value of the land before and after the grant of the easement. The War Department has followed this procedure in connection with the establishment of military air fields. Valuation of these easements has been determined with reference to the highest and best use to which the property might be devoted. It is granted that this would be an effective method of eliminating obstructions; but again, the cost would be very great. 7. Federal regulation and control. It has been proposed that the Federal government, in the exercise of the commerce, war, and postal powers, adopt a national program of airport zoning. A bill including a provision for the extension of Federal jurisdiction in this area was introduced in the House of Representatives as recently as 1943. The bill was subsequently rewritten, however, and this provision eliminated. In view of the fact that airport zoning is essentially a local problem with each airport presenting its own peculiar problems, it seems prefer- able that this matter be left in the hands of state and local authorities. At this point there is little probability of Federal action in view of the forward steps being taken by state and local governments. 8. Airport zoning by state and local governments. Those who have investigated the problem of protecting airspace approaches to airports have unanimously concluded that zoning by state and local governments provides the most satisfactory solution. It is certain to provide the desired result; it is most practicable of administration; and finally, it is the least costly, since reasonable zoning regulations prevent the erection of hazards without requiring compensation of the landowner. Validity of airport zoning. All quarters interested in civic and aeronautical development have recognized the need for airport zoning and its effective solution of the problem of approach protection. Con- sequently, airport zoning ordinances have been widely adopted. But there is one remaining and all-important hurdle to be cleared — this is the hurdle of constitutional validity. Although the first airport zoning ordinance dates back twenty years, only two cases thus far have been decided on this issue, and only one of these by a court of last resort. In each instance the airport zoning regulations were held invalid. There is no foundation in these decisions, however, for a prediction that airport zoning is destined for judicial "rough-sledding." The particular circumstances of those cases lead to a contrary conclusion. In one, there was no enabling statute authorizing airport zoning by local authorities. In the other, the zoning regulations were so unreasonable as to clearly constitute a taking of property without compensation. In this latter 18 AIRPORT ZONING case, no structure could be erected in some areas of the particular tract above a height of five feet. There are three aspects to the question of validity. First, does the political unit promulgating the zoning regulations have the power to do so? This is primarily a question of delegation. Has the state govern- ment conferred authority upon local governmental bodies to adopt zoning regulations for airports? At first glance, the answer would appear to rest upon general zoning legislation or charter authority em- powering local municipalities to adopt comprehensive zoning ordi- nances. Authority to adopt a comprehensive zoning plan, however, does not necessarily include authority to adopt airport zoning regulations. If zoning regulations for airports were adopted in conjunction with a comprehensive zoning plan, there would apparently be little basis for questioning the authority of the municipality. But this situation seldom exists. Ordinarily, the airport zoning regulations pertain solely to the protection of airport approaches and have no relation to the compre- hensive zoning plan. In other cases, the airport is located wholly or partially outside the limits of the municipality, and the local governing unit has no general zoning authority beyond its boundaries. For these reasons, it has been generally concluded that express legislative or charter authority to adopt airport zoning ordinances should be granted local municipalities. If express authority has been conferred by the state upon the municipality, we are confronted with a second question. Is airport zoning a proper exercise of the police power? Do airport zoning regu- lations bear a substantial relation to the public health, safety, morals or general welfare? Is the public interest such that it is reasonable to impose restrictions upon the use of property adjacent to an airport without compensating the owner for the resulting loss in value? The decision necessarily involves weighing the respective interests of the public and the individual. Air transportation has become an increasingly important avenue of commerce. It is destined to acquire paramount importance. The public has an unlimited stake in its further development. The mail, passenger, and freight services provided by air transport facilities are a boon to every community. Immeasurable economic and social progress has uni- versally attended the development of the various methods of transpor- tation. All circumstances point toward similar benefits arising out of the development of air transportation. Furthermore, the public has a huge investment in publicly owned airport facilities. In ruling upon the validity of expending public funds in the acquisition and develop- ment of airports, the courts have recognized the public interest in air UNIVERSITY OF ILLINOIS 19 transportation and have held that the expenditures are for a public purpose. In sustaining the exercise of the power of eminent domain in acquiring publicly owned airport sites, the courts have referred to them as public utilities. Another factor which cannot be ignored is the relation of airport facilities to our national defense. These con- siderations warrant only one conclusion; namely, that the promotion of the public welfare is inherent in the protection afforded airports by the adoption of reasonable zoning regulations. The promotion of the public safety by the adoption of airport zoning regulations affords a more specific basis for extension of the police power in this area. With the increasing number of airplanes and the increasing number of air passengers, unobstructed approaches to airports are essential to the public safety. This benefit accrues not only to the air-minded public but also to those residing, working, or traveling in areas surrounding airports. Hazards to airplanes approach- ing an airport are also hazards to the safety of the people in the ad- jacent areas. The exercise of the police power for the purpose of protecting and promoting the public health and safety has generally met with judicial approval. If it is determined that airport zoning bears a substantial relation to the public safety and general welfare, we are faced with the last and probably most troublesome question of all. It arises upon application of a particular airport zoning regulation to specific property. The question involves the extent to which a restriction may be placed upon the use of adjacent property without there being an unlawful taking of that property. At the outset, it may be granted that an attempt to apply airport zoning regulations retroactively against existing obstructions would be unreasonable and amount to an unlawful taking of property. Airport zoning statutes explicitly prohibit retroactive application of the restric- tions adopted. Our concern as to validity lies in the prospective ap- plication of airport zoning regulations. The answer depends on whether the restrictions are reasonable. As is true of any case involving the question of reasonableness, there is no standard rule-of-thumb appli- cable in every situation. Each case must be decided in the light of its particular facts and circumstances. There are, however, certain general considerations which might be noted. In the first place, we are faced with the fact that airport zoning regulations do affect the property interests of the landowner. The original notion that the landowner's property extends from the surface to the heavens has, of course, long since been rejected. Beyond a certain height the landowner's property interest ceases to exist; it does not ex- 20 AIRPORT ZONING tend into the upper airspaces. There is an area in the airspace above the land, however, which all will agree is the property of the landowner. No one would assert that the landowner has a property interest in the airspaces 5000 feet or 10,000 feet above the surface of the land. But all would agree that the landowner has a property interest in the air- spaces 5, 10, 50, or 100 feet above his land. Legal authorities are not in agreement as to the exact nature, character, description or boun- daries of this recognized property interest. That is immaterial. The important consideration is that airport zoning regulations do constitute an interference with recognized property interests. If the height limi- tation upon structures imposed by an airport zoning ordinance sub- stantially divests the property owner of that interest, there is a taking of property without compensation. Perhaps the maximum airport zoning regulation can be defined in terms of the minimum use which should be assured the owner of ad- jacent property. If the zoning ordinance should impose upon his land a restriction that no structure could be erected in excess of ten feet in height, such a regulation would undoubtedly constitute an unreason- able restriction. Considering the ordinary uses to which land may be devoted, a height limitation of ten feet would eliminate most possibili- ties. Few, if any, useful structures could be erected on the land at all. The only remaining ordinary use would be agricultural. Such a re- striction would clearly constitute a taking of the landowner's property. If, on the other hand, the height limitation would permit the erection of two-story structures (for example, 35 feet), the regulation would permit the use of the land for practically all the ordinary purposes to which land is devoted. The premises could be used for agricultural, residential, commercial, business, or manufacturing purposes subject, of course, to any comprehensive zoning or other airport zoning re- strictions which might be applicable. At the same time, the approach zones of the airport would be adequately protected. This would achieve a reasonable balance between the interests of the public in unobstructed airspace approaches and the interest of the individual in the use of his land. A regulation imposing this type of restriction should stand the test of reasonableness and thus assure the validity of the ordinance. AIRPORT ZONING LEGISLATION Need for legislation. As previously noted, one of the conditions precedent to the validity of airport zoning is the existence of authority in the governmental unit which enacts the regulations. Since the powers of local governing bodies are derived from the state, it is essential that there be a delegation ,of authority to the local political subdivisions to act in this field. The peculiar problems of airport zoning create doubt as to whether the grant of authority to adopt general zoning ordinances is sufficiently broad to include airport zoning. In those instances where the airport or approach areas are located beyond its territorial limits, the municipality is without authority to adopt necessary regulations. To resolve any doubts in favor of the existence of the power, and to grant authority where it is obviously lacking, it has been deemed generally advisable for the respective states to adopt enabling statutes expressly conferring authority upon the municipalities or providing for necessary charter modifications. Adoption of enabling statutes. Statutes authorizing airport zoning by local governmental units were first adopted in 1929. In that year, Indiana and Connecticut passed legislation authorizing zoning by local authorities to protect airport approaches. This was followed by similar legislation in Alabama and Maine, in 1931. By the end of 1938, nine states had adopted general airport zoning statutes. These were Alabama, Connecticut, Florida, Indiana, Louisiana, Maine, Maryland, Michigan, and Pennsylvania. With the exception of Maryland and Pennsylvania, the statutes delegated zoning authority to state agencies or local governmental units. The Maryland and Pennsylvania acts, on the other hand, were self -operating in that specific height limitations applicable to the areas surrounding airports were incorporated in their respective statutes. The vigorous leadership and activity of the National Institute of Municipal Law Officers and the Civil Aeronautics Administration in the promotion of airport zoning has led to the widespread adoption of enabling statutes. Since April, 1939, both have sponsored a series of model airport zoning statutes, either independently or on a co- operative basis. The fifth and most recent model act, dated November 7, 1944, is a joint CAA-NIMLO product and appears in the Appendix at page 46. The model statutes developed over the period 1939-1944 have been adopted in many jurisdictions or have provided the basic pat- tern for the statutes enacted. At this writing, forty states and Alaska 21 22 AIRPORT ZONING and Hawaii have general airport zoning statutes in effect. A list of these statutes is included in the Appendix at page 54. Problems requiring legislative treatment. The following com- ments are framed around the provisions of the CAA-NIMLO Model Act. There are two reasons for this: first, many statutes are similar, if not identical, to the Model Act; second, the Model Act currently re- flects the best informed and composite view of the statutory approach to this problem. It will serve as the basis for additional adoptions of enabling acts and the amendment or replacement of existing statutes. In drafting any statute there are preliminary matters which require attention. These include the title, definition of terms, etc. The defi- nitions of the terms used in the Model Act are included in Section 1. It is interesting to note that the term "airport" includes all airports, whether public or private, which are operated in the public interest. The term "political subdivision" is defined to include any political unit of the state. Since the adoption of an act authorizing airport zoning constitutes a proposed extension of the police power, it is well that the legislature indicate the factors motivating its action. Section 2 of the Model Act performs this function and declares in some detail that obstructions to airport approaches are a menace to the public health, safety, and general welfare, and constitute public nuisances requiring regulation. This recital is not binding upon a court in determining whether airport zoning is a valid exercise of the police power; but this declaration by the legislature would be accorded considerable weight. A number of substantive and procedural problems which arise in connection with the adoption, administration, and enforcement of air- port zoning ordinances require legislative determination. These are completely provided for in a satisfactory enabling statute. The various problems and their treatment under the Model Act are outlined as follows: 1. Agencies authorized to adopt airport zoning regulations. There has been some disagreement as to whether, as a matter of policy, local governmental units alone should be entrusted with authority to zone airports. In some states it has been deemed advisable to place super- visory control in an agency of the state government. In other states, actual zoning authority has been vested exclusively or concurrently in a state agency. The policy of the National Institute of Municipal Law Officers and the position of the American Municipal Association has been to encourage airport zoning exclusively by local authorities. Sec- tion 3 of the Model Act has been drafted to place primary responsibility with local officials. Since the problems of airport zoning are essentially UNIVERSITY OF ILLINOIS 23 local, it would seem preferable to place initial zoning authority in the hands of local governing bodies. This is especially advisable where air- port zoning regulations are to apply in an area already subject to a general zoning ordinance promulgated by a local governmental unit. The local officials are in a better position to adopt an airport zoning ordinance which can be most satisfactorily integrated with existing zoning regulations. There would also be considerable advantage to both the landowner and the public in having the same property zoned by the same governmental unit. There is considerable to be gained, however, by placing general supervisory authority in a state agency. The principal benefit lies in the assistance which this body can render in connection with the technical details involved in the preparation of an airport zoning ordinance. It also assures adherence to recognized approach standards. As a pre- cautionary measure, it is advisable to authorize the state agency to adopt necessary zoning regulations where the local authorities have failed to act or have imposed inadequate restrictions. (See footnote 6, p. 47, in the Appendix.) 2. Zoning for privately owned airports. Zoning for privately owned airports has not received the unqualified support that has been ac- corded zoning for publicly owned fields. Some doubt has been ex- pressed as to the validity of zoning regulations adopted for the protec- tion of a private airport. These doubts would certainly be justified if the airport were not devoted to public use. Where privately owned air- ports are operated in the public interest, however, the same considera- tions supporting zoning for publicly owned airports would certainly exist. The provisions of the various model zoning acts have differed on this point as have the enabling statutes adopted by the respective states. As noted in connection with the definition of terms, the current Model Act authorizes the adoption of zoning regulations for the pro- tection of all airports operated in the public interest. 3. Extra-territorial zoning. Many municipally owned airports are located beyond the territorial limits of the respective cities. In order that the approaches to these airports may be adequately protected, it has been necessary to extend the zoning authority of the proprietor municipality beyond its territorial limits. Section 3 of the Model Act provides three alternative methods of regulating the approach areas of these airports: (a) The political sudivision within which the airport is located may adopt zoning regulations. (Section 3 (1).) (b) The owner-municipality and the political subdivision within 24 AIRPORT ZONING which the airport is located may create a joint airport zoning board to adopt necessary regulations. (Section 3 (2).) (c) The owner municipality may be authorized to adopt necessary zoning regulations by independent action. This authority would be exercised only where the political subdivision within which the airport is located fails to act in accordance with either of the foregoing authori- zations, or adopts inadequate restrictions under the first method. (See footnote 6, page 47.) The Minnesota authorities have prepared a suggested formal re- quest to be utilized by owner municipalities to initiate procedures (a) or (b). (See Appendix, page 60.) Failure of the addressed govern- mental body to act favorably upon the request opens the door for independent action by the owner municipality under method (c). 4. Airport zoning standards. The character of the area surround- ing an airport varies with each airfield. Consequently, it is impracticable to include specific height limitations in the enabling statute which shall be applied to every airport zoned throughout the state. Some statutes have included specific regulations. The preferable and more general treatment, however, has been to reserve to the local zoning authorities a determination of the regulations particularly adaptable to the airport zoned. The only standard prescribed in the Model Act is found in Sec- tion 6 (1). There it is provided that "airport zoning regulations . . . shall be reasonable and none shall impose any requirement or restric- tion which is not reasonably necessary to effectuate the purposes of this Act." It is further provided that in adopting regulations there should be taken into account ".' . . among other things, the character of the flying operations expected to be conducted at the airport, the nature of the terrain within the airport hazard area, the character of the neighborhood, and the uses to which the property to be zoned is put and adaptable." 5. Airport zoning and comprehensive zoning. Comprehensive zoning regulations are often in operation in the approach areas sur- rounding an airport or are subsequently adopted in those areas. Where this is the case, airport zoning provisions should, if possible, be in- corporated and integrated in the comprehensive zoning ordinance. Section 4 ( 1 ) of the Model Act expressly authorizes this procedure. Since airport zoning regulations are not generally related to the comprehensive zoning scheme, there is considerable likelihood that the regulations adopted to protect an airport will not coincide with ex- isting zoning restrictions relating to the height of structures and land uses. To anticipate this situation, it is generally provided that in the UNIVERSITY OF ILLINOIS 25 event of conflict the more restrictive regulations shall govern. This is the provision of Section 4 (2) of the Model Act. 6. Elimination of existing obstructions. It often occurs that hazard- ous obstructions lawfully exist within the approach areas of an airport at the time an airport zoning ordinance is adopted. In many instances it is essential that these obstructions be removed. Forcing removal at the expense of the property owner by giving retroactive application to the airport zoning ordinance would constitute a taking of property without due process of law, unless it could be shown that such ob- structions were public nuisances. This is a difficult obstacle to overcome. To obviate possible invalidity on this point, the Model Act expressly provides that no airport zoning regulation shall be given retroactive effect. (Section 6 (2).) In order to provide validly and effectively for the elimination of existing hazards, however, local governmental bodies are generally authorized to acquire necessary property rights in adjacent property. With this authority, the political subdivision may secure the removal of existing obstructions by acquiring an avigation easement over the property or complete title to the property either by purchase or by con- demnation. Section 13 of the Model Act incorporates such a provision. An additional provision relating to the removal of existing non- conforming uses is suggested in connection with the section on permits. (See footnote 9, page 49.) This provision would apply in those in- stances where an existing nonconforming use is subsequently aban- doned, or more than 80 percent destroyed. Under these circumstances, the structure may be repaired or reconstructed only in conformity with the zoning restrictions. This provision appears both expedient and reasonable. The validity of similar provisions has been generally established in connection with comprehensive zoning ordinances. The Iowa enabling act contains an effective variation in its pro- visions pertaining to the regulation of existing obstructions. Although zoning regulations are not to be given retroactive application, political subdivisions are specifically authorized to mark and light existing ob- structions at their own expense. The Model Act only authorizes mark- ing and lighting in connection with the issuance of permits and the allowance of variances. (Sections 6 (2) and 7 (3).) 7. Adoption, administrative, and judicial procedures. Necessary administrative and enforcement machinery must be provided in any zoning legislation. At the same time, an important safeguard is the inclusion of adequate procedures for the protection of property owners. Provisions of this type promote the acceptance of zoning regulations 26 AIRPORT ZONING by both the property owners and the courts. The various procedures provided in the Model Act are summarized to illustrate the machinery ordinarily established under an airport zoning statute. These provisions are based in great part on the experience and developments in the field of comprehensive zoning. (a) "Adoption of airport zoning regulations." It is important that adequate consideration be given to proposed airport zoning regulations prior to adoption by the legislative body of the local political sub- division. To avoid ill-conceived regulations, it is provided in Sec- tion 5 that the legislative body appoint an Airport Zoning Commission to conduct a survey and submit its recommendations. This Commis- sion may consist (and preferably so) of the city planning authority or regional planning authority if one already exists in the area. The Commission prepares a preliminary report and holds a public hearing thereon before its final report is submitted. Before acting on the Com- mission's report, the legislative body also holds a public hearing after giving public notice. This procedure assures the surrounding property owners an opportunity to present their case fully. (b) "Administration of airport zoning regulations." There must be some officer or body to administer the regulations which are adopted in an airport zoning ordinance. Section 9 of the Model Act provides that the administrative and enforcement agency shall be created or desig- nated at the time airport zoning regulations are adopted by the local legislative body. The zoning regulations are made effective by providing a permit system as indicated in Section 7 (1) of the Model Act. A permit must be applied for and obtained from the administrative officer in all cases as a condition precedent to the erection, repair, or alteration of any structure in the area zoned. Permits may be issued only if the con- struction, repair, or alteration is in conformance with the zoning restric- tions. Permits for the repair or alteration of existing nonconforming uses may be issued only if the hazards created by those structures are not increased. The administrative officer does not have authority to rule upon applications for variances. Initial jurisdiction over the allow- ance of variances is placed with the Board of Adjustment. (c) "Variances and appeals." In some instances, strict application of the zoning regulations adopted may result in imposing a burden upon the landowner incommensurate with the benefit accruing to the public. In other instances, the property owner may conclude that the administrative officer is improperly applying the zoning regulations to his property. These situations create a need for an administrative body to resolve the conflicts. UNIVERSITY OF ILLINOIS 27 The Model Act provides that a Board of Adjustment shall be created with authority to rule upon applications for variances and to hear appeals from the action of the administrative officer. (See Sec- tions 7 (2), 8, 10.) The personnel of the board shall be divorced from the administration of the zoning regulations. The Board may be sepa- rately constituted or may be the zoning board of appeals or board of adjustment previously established under a comprehensive zoning ordinance. The Board shall prescribe the rules to be followed in apply- ing for variances and in taking appeals from the administrative officer. It is provided that hearings shall be public and that decisions shall be reached by majority vote of the members. The Board of Adjustment may authorize a variance from the regulations adopted by the legislative body "where a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the public interest but do substantial justice and be in accordance with the spirit of the regulations and this Act . . . ." Reasonable conditions may be placed by the Board upon any variance which it grants. The Act specifically authorizes the imposition of a condition that the political subdivision be permitted to mark and light the structure coming under the variance, where the Board determines this precaution to be both advisable and reasonable. Appeals to the Board from the administrative agency must be made within a reasonable time as established by the rules of the Board. An appeal to the Board shall stay the action of the administrative agency, unless the latter certifies that imminent peril to life or property would result. But the Board may, even in this situation, stay the action of the administrative agency after notice and upon due cause shown. The Board shall afford a hearing within a reasonable time after public notice and notice to the parties. It may affirm or reverse, wholly or partly, or modify the determination of the administrative agency. Adequate records of its proceedings are to be kept and made available to the public." (d) "Judicial review." Provision for appeal from the Board of Adjustment to the courts is the final link in the procedural protection afforded the property owner. It is also available to the governing body affected by an adverse decision of the Board. (See Section 11.) Such an appeal must be taken within thirty days after the Board's decision is filed. There is no stay of proceedings upon the Board's decision unless a restraining order is obtained from the court on a showing of due cause. The Board's findings of fact are conclusive if supported by substantial evidence. Furthermore, the court is limited to a considera- 28 AIRPORT ZONING tion of the objections made before the Board. It cannot rule upon additional objections unless there is a reasonable explanation for the complainant's failure to have raised these matters in the proceedings before the Board. 8. Enforcement provisions. Needless to say, effective enforcement of airport zoning regulations is essential to the accomplishment of the purpose for which adopted. In Section 12, the Model Act provides two types of remedies, one criminal and one civil. The first remedy is created by providing that a violation of any rules or regulations adopted under the Act shall constitute a misdemeanor punishable by fine or imprisonment or both. The second, and more effective remedy, is pro- vided by authorizing political subdivisions to apply to the courts for injunctive relief necessary to the specific enforcement of particular regulations. AIRPORT ZONING ORDINANCES Adoption of airport zoning ordinances. Strangely enough, the first airport zoning ordinance antedated the first enabling statute for airport zoning. The County of Alameda, California, is credited with the distinction of being the first governmental unit to adopt an airport zoning ordinance. The ordinance adopted by that body, in December, 1928, provided that no obstruction more than 50 feet high should be erected within 1000 feet of the boundary of any public airport within the county. A few weeks later, in January, 1929, the Board of Port Commissioners of the City of Oakland, California, adopted an ordi- nance imposing the same restrictions upon land uses in the area sur- rounding the Oakland Municipal Airport. In December, 1930, airport zoning received considerable impetus as a result of the report by the ' Committee on Airport Zoning and Eminent Domain of the Department of Commerce. It recommended the general adoption of airport zoning- ordinances as an economical and effective means of protecting airport approaches. In April, 1939, the National Institute of Municipal Law Officers, on the basis of a survey conducted throughout the country, reported the adoption of special airport zoning ordinances by twelve cities: Akron, Ohio; Chicago, Illinois; Clifton, New Jersey; Dearborn, Michigan; Indianapolis, Indiana; Philadelphia, Pennsyl- vania; Seattle, Washington; and Fresno, Glendale, Los Angeles, Oak- land, and San Diego, California. Two cities, Omaha, Nebraska, and Atlantic City, New Jersey, were reported to have provided adequate airport zoning protection under their general comprehensive zoning ordinances. It is not indicated that this survey was all inclusive of airport zoning ordinances then in operation. In any event, it was sufficiently complete to be fairly indicative of the extent of adoptions at that time. In the same report, the National Institute of Municipal Law Officers included a draft of a model zoning ordinance to accompany its model airport zoning statute. The increased activities of the National Insti- tute of Municipal Law Officers and the Civil Aeronautics Administra- tion since 1939 in promoting the adoption of airport zoning regulations have been responsible for the developments that have occurred in the interim and the widespread current interest in this problem. This in- terest is centered around the preparation of airport zoning ordinances and the provisions to be included therein. Preparing an airport zoning ordinance. Assistance. There are a number of invaluable sources of assistance and information which 29 30 AIRPORT ZONING may be utilized in preparing an airport zoning ordinance. Often there is a state aeronautical department or other agency established for the express purpose, among others, of assisting local governmental bodies in this task. The state agency may have prepared a model ordinance or other materials for the guidance of local officials. If not, copies of model ordinances prepared for use in other jurisdictions might be obtained for their helpful suggestions. The National Institute of Municipal Law Officers has prepared a recent revision of its Model Zoning Ordinance which is included in the Appendix at page 46. This and other materials and information are available to the officials of municipalities which are members of that organization. The Civil Aeronautics Administration is also vitally interested. Advisory service on problems of airport zoning is available from Regional Administra- tors, Superintendents of Airports, and District Airport Engineers in the various Civil Aeronautics Administration field offices or from the Airport Operations Service, Office of Airports, Washington, D. C. The establishment of airport approach standards by the Civil Aeronautics Administration has facilitated the task of determining the areas to be zoned and the height restrictions to be adopted. A helpful pamphlet on the subject has been prepared by the Air Transport Association of America, Washington, D. C, and is entitled: Airline Airport Design Recommendations, Part II — Airport Obstructions, Approaches, and Zoning. General Considerations. The factors to be considered in the prepa- ration of an airport zoning ordinance necessarily vary with each airport zoned. The following, however, are among the items generally re- quiring consideration: 1. "Present and potential land uses in the surrounding areas." This factor requires the greatest consideration of all. The validity of any airport zoning ordinance will depend on whether the regulations adopted are reasonable in the light of present and potential land uses in the surrounding areas. 2. "Size of the airport — Type of planes handled." The size of the airport determines the type of traffic and planes which can be handled. This in turn will determine the height limita- tions to be imposed upon the land in the approach areas. The larger the airport, the heavier the airplanes handled or to be handled, and the more restrictive must be the height limitations adopted. 3. "Topography." The topography of the area surrounding the airport will affect the location of runways and landing strips. An airport located in a valley UNIVERSITY OF ILLINOIS 31 or depressed area must place its runways and landing strips in con- formance with the surrounding terrain. This will limit the approach areas of the field and will determine the areas to be zoned against obstructions. 4. "Prevailing winds." Prevailing winds will also affect the location of the airport run- ways and landing strips. If wind conditions are such that runways are located so that landings and take-offs are limited to few directions, that will limit the areas in which the more restrictive height regula- tions must be applied. 5. "Comprehensive zoning ordinances." If there is a comprehensive zoning ordinance in operation in the area, consideration should be given to the incorporation of the airport zoning regulations as an integral part of the general plan. This should be done wherever practicable. It will facilitate and simplify the adop- tion and administration of the regulations. It will tend to assure validity since, by being part of a general zoning plan, the regulations are less likely to fail to meet the test of reasonableness. 6. "Use of maps." In preparing an airport zoning ordinance, the use of maps is in- dispensable whether or not the regulations for the protection of the airport approaches are integrated in a comprehensive zoning plan. Ad- ministration of the regulations is materially facilitated by maps which indicate clearly the approach areas zoned and the applicable height restrictions. The zoning map prepared for Boeing Field Airport, which is reproduced in the Appendix at page 59, is an excellent example. It will be noted that the field and its approach areas are located partly within the City of Seattle and partly within King County. Conse- quently, it was necessary for the two political units to act concurrently in the adoption of appropriate regulations. The regulations adopted by both the city and the county were integrated with and made a part of their respective comprehensive zoning codes. Meeting the Test of Reasonableness. The major task facing the drafters of airport zoning ordinances is the adoption of height limita- tions which will meet the ultimate judicial test of "reasonableness." "Reasonableness" is grantedly an extremely nebulous test. There is no established formula capable of universal application. Consideration of the character of the area surrounding the airport, however, does lead to certain general conclusions with respect to this problem. If the airport is located in an area which is relatively completely developed, the maximum height restrictions must necessarily recognize 32 AIRPORT ZONING general existing uses. Assume that the land in a particular area to be zoned is improved with buildings, 70 percent of which are 75 feet or more in height. An airport zoning ordinance is adopted which estab- lishes a height limitation of 60 feet on any structures to be erected in the area in the future. Under the circumstances, this regulation is obviously unreasonable. It suggests that the airport is currently operating satisfactorily with most structures in the area at a height of 75 feet, but that anticipated developments will necessitate lowering surrounding structures in the future. Airport zoning regulations can- not be validly devised to impose upon adjacent property owners the burden of existing deficiencies in the location of the airport. This suggests another point to be considered. It is implicit in the changes which have occurred in the glide ratios of planes as a result of the development of larger craft. Zoning for planes of the 7 to 1 class would not preserve the approach areas for planes of the 40 to 1 class. Will zoning ordinances based on the 40 to 1 or 50 to 1 glide ratios of today preserve the approach areas for the planes of tomorrow? That is a risk inherent in the current adoption of airport zoning ordi- nances. The framers of airport zoning ordinances must have an eye for the future as well as the present. Ordinances drafted today should im- pose maximum restrictions upon the height of structures compatible with the measure of reasonableness. The fact that the airport is located in a relatively undeveloped agri- cultural area, however, does not allow a free hand in devising zoning restrictions. There are, of course, no existing uses by which the framers are bound. But potential future uses of the surrounding areas cannot be ignored. An airport does not operate in seclusion. There must be adequate housing facilities in the area for those employed at the airport. There must be adequate commercial establishments to meet the demands of residents and air travelers. The airport zoning restric- tions adopted must permit sufficient future development of housing and business establishments. The height restrictions imposed in agricultural areas surrounding an airport must conform to the reasonable and ordi- nary land uses of the future. An airport zoning ordinance cannot be framed in opposition to the fact that cities develop in the environment of transportation terminals. Zoning for an airport located in a relatively undeveloped area im- mediately suggests the desirability, if not the necessity, of regional planning and zoning. A major airport located in a relatively unde- veloped area is ordinarily beyond the territorial limits of the owner municipality. It has been so located to meet the current and antici- pated demands of heavier traffic and heavier planes. Suitable and UNIVERSITY OF ILLINOIS 33 adequate facilities are not available in the more congested areas of the urban community. Future community development in the region of the new airport is a foregone conclusion. The necessity for regional plan- ning and zoning which would incorporate the airport as an integrated part of the w T hole regional scheme of land uses would result in adequate protection of the airport approaches. There would be no need for separate airport zoning. Provisions of airport zoning ordinances. The suggestions herein regarding the provisions to be included in an airport zoning ordinance are based primarily upon the Model Ordinance prepared by the Na- tional Institute of Municipal Law Officers. The Model Ordinance fol- lows the pattern of the Model Airport Zoning Act and is included in the Appendix at page 55. The NIMLO Model Ordinance furnishes the basic outline and provisions for any airport zoning ordinance. Circumstances, both legal and nonlegal, vary from state to state and airport to airport, and no model ordinance can be applied without some variation. Various adaptations of this Model Ordinance have been suggested, and the following recent materials have been examined and compared with the provisions of the Model Ordinance: 1. Model Ordinance for Iowa Municipalities; prepared by Mr. Ray Nyemaster, Des Moines, Iowa, with the cooperation and suggestions of the Attorney General of the State of Iowa, the Iowa Aeronautics Commission, the Civil Aeronautics Administration, and Mr. Charles S. Rhyne, General Counsel, National Institute of Municipal Law Officers. 2. Model Airport Zoning Ordinance for the Zoning of Public Air- ports by Minnesota Municipalities and Counties; prepared by the Minnesota Department of Aeronautics in conjunction with and assisted by the League of Minnesota Municipalities, and approved by the At- torney General of the State of Minnesota. 3. Model Airport Zoning Ordinance for New York Municipalities; issued by the Bureau of Aviation, Department of Commerce, State of New York. 4. Recommended Airport Zoning Ordinance for Tucson Municipal Airport No. 2; prepared by the Pima County Post-war Planning Board and Airport Zoning Commission, Tucson, Arizona. 5. Model Airport Zoning Ordinance for Wisconsin Cities and Vil- lages; prepared by the League of Wisconsin Municipalities in coopera- tion with the Wisconsin State Planning Board. The significant variations between these ordinances and the NIMLO Model Ordinance are included in the text to follow or published in the Appendix. The NIMLO ordinance will hereafter be referred to as 34 AIRPORT ZONING the "Model Ordinance"; the other ordinances will be referred to as the Iowa, Minnesota, New York, Tucson, and Wisconsin ordinances, respectively. Establishing Zones and Height Limitations. The first task is to define and identify the areas in which restrictions are to be imposed under the ordinance. These will generally be determined in accordance with the Airport Approach Standards established by the Civil Aero- nautics Administration. In some instances, the enabling statutes pro- vide that minimum zoning standards for airports shall be established by a state agency. Minnesota, for example, has provided that its Commissioner of Aeronautics shall establish minimum airport approach and turning standards for public airports in that state. These have been determined substantially on the basis of Civil Aeronautics Ad- ministration standards and appear on page 60 in the Appendix. In accordance with the CAA Airport Approach Standards, it is customary practice to zone the surrounding areas for a radius of two miles from the ends of the airport runways and landing strips. The Wisconsin ordinance, however, provides for zoning the surrounding areas for a distance of three miles. The extension of the area zoned may be desirable as a precautionary measure, to preserve additional unobstructed airspaces in contemplation of future requirements. Section 3 of the Model Ordinance divides the surrounding area into two zones, "approach zones" and "turning zones." These may be pictured by referring to the CAA Airport Approach Standards in the drawing on page 59 of the Appendix. The "approach zones" fan out- ward from the ends of the runways to the boundary of the area zoned and resemble the spokes of a wheel. The areas between these spokes are designated "turning zones." The more restrictive height limitations are placed upon structures in the approach zones. A maximum height limitation of 150 feet is allowed in the turning zones. In addition, there are "transition zones" in the CAA drawing, which lie between the inner areas of the approach zones and the turning zones. The inner areas of the approach zones are those where the maximum height limitations are less than 150 feet. The height restrictions imposed in the transition zones provide for a gradual outward increase on a 7 to 1 slope from the edge of the approach zone to a height of 150 feet, thus forming the boundary of the adjacent turning zone. The Model Ordinance does not provide for a detailed description of the respective zones. It merely incorporates by reference the zones as delineated on the Airport Approach Plan (map) applicable to the particular airport. This method is followed in the New York and Tucson ordinances. The Iowa, Minnesota, and Wisconsin ordinances, UNIVERSITY OF ILLINOIS 35 however, include a description in metes and bounds of the respective zones and also incorporate, by reference, applicable zoning maps. These provisions of the Minnesota ordinance are included in the Appendix at page 60, together with illustrative maps and diagrams. Unless local statutory requirements or other considerations compel a description of the areas zoned, it would seem preferable merely to incorporate a map indicating the respective zones established. The provisions of the New York ordinance, on page 61 of the Appendix, illustrate the latter method. In some instances additional intermediate zones are established in the ordinance, such as landing zones, landing transition zones, and approach transition zones. The proposed Tucson ordinance provides such additional classifications. These provisions with illustrative maps and diagrams appear at page 62 in the Appendix. The height limitations to be applied in the respective zones should be established in accordance with the CAA Airport Approach Stand- ards or similar standards adopted by a state agency having supervisory authority. These will be adopted after taking into account necessary factors bearing upon the question of reasonableness. In order to meet the test of reasonableness, it may be necessary, in adopting height restrictions conforming to established approach standards, to expand the airport boundaries or acquire avigation easements over the prop- erty immediately bordering the field. Section 4 of the Model Ordinance, relating to height limits, does not include any specific provisions, recognizing that these will vary with each airport. The height limita- tions in the Minnesota, New York, and Tucson ordinances which ap- pear in the Appendix are illustrative of the type of height limitation provisions to be included in an airport zoning ordinance. Use Restrictions and Exceptions. The next provision of impor- tance to be included in an airport zoning ordinance is a restriction upon land uses in the zoned areas which are likely to interfere with visibility and communications. Section 5 of the Model Ordinance is designed to regulate these obstructions. The Minnesota and New York ordinances incorporate this provision without substantial changes. The Iowa ordinance also adopts this provision but adds an exception as to trees and structures, providing that "the mere height of trees or struc- tures on any land in said zones conforming to the height restrictions prescribed in Article IV of this ordinance shall not constitute a use of land in violation of this Section." The Wisconsin ordinance also incorporates Section 5 of the Model Ordinance, but it adds an exception clause which excludes legal fences, farm crops, and certain railroad structures from the height limitations prescribed in the preceding provisions of the ordinance. This provision 36 AIRPORT ZONING appears in the following language: "The [height] restrictions contained in Section 3 shall not apply to legal fences or to farm crops which are cut at least once each year, or to railroad buildings, bridges or facilities, but shall apply to railroad, telegraph, telephone, and overhead signal system poles and wires." The Tucson ordinance elaborates on the Model Ordinance pro- vision by detailing certain specific land uses which are prohibited and then concludes with the language of Section 5. The following uses are prohibited: transformer stations; high power transmission lines; heavy smoke-producing manufacturing establishments; plants discharging gases and odors which interfere with the use of the airport; and any business or structure detrimental or injurious to the public in the use of the airport. This provision of the Tucson ordinance is incorporated as Section 5 of the Composite Model Ordinance on page 63 in the Appendix. The Tucson ordinance also recognizes another type of land use or obstruction not generally subjected to regulation under an airport zoning ordinance. This relates to the location of adjacent airports. Future airports must be located at proper distances from the existing airports which are being zoned. If not, traffic hazards will create serious obstructions to the future use of existing facilities. To insure proper spacing of airports with reference to Tucson Municipal Airport No. 2, the proposed ordinance places the following restrictions upon the establishment of future airports: (a) no airport of Class I or greater as defined in the ordinance may be established within a radius of 8 miles unless a permit is applied for and granted; (b) the minimum distance between the Tucson airport and other airports is established at 5, 6, 7 or 8 miles depending on whether the other airport is in Class I, II, III or IV, respectively; (c) variances from the restrictions stated may be allowed where unnecessary hardship would occur and where permitted variances would not be contrary to the public interest. These provisions of the Tucson ordinance are included in complete detail as Section 6 of the Composite Model Ordinance in the Appendix at page 63. The problem of future airport location is generally one for regional planning. In many instances, however, no machinery has been estab- lished for regional zoning and no steps have been taken to zone the location of future airports. Under these circumstances it is wise, as a precautionary measure, to include a provision in the particular airport zoning ordinance to prevent the hazardous location of future airports. Although there is no specific statutory authorization for this type of regulation, there should be little question as to the validity of a pro- UNIVERSITY OF ILLINOIS 37 vision of this nature. The Model Act, which has been adopted by Arizona, defines an "airport hazard" as "any structure or tree or use of land which obstructs the air space required for the flight of aircraft in landing or taking-off at an airport or is otherwise hazardous to such landing or taking-off of aircraft." This definition has also been included in the proposed Tucson ordinance. The establishment of an airport in unreasonable proximity to an existing airport certainly con- stitutes a land use which creates an obstruction and is otherwise hazard- ous to the use of present facilities. Nonconforming Uses. In accordance with the Model Act, Section 6 of the Model Ordinance provides that the regulations shall not be given retroactive effect. This provision is incorporated in each of the other ordinances with minor variations. These variations pertain for the most part to the prescribed period within which nonconforming uses under construction must be completed in order to escape the restrictions imposed by the ordinance. There is no specific provision in the Model Act covering this situation, but Section 6 of the Model Ordinance states that the regulations adopted shall not apply to a non- conforming use under construction prior to the effective date of the ordinance, provided it is diligently prosecuted to completion within two years. The Iowa ordinance adopts a time limit of one year on such projects. The Wisconsin ordinance merely requires that the noncon- forming use under construction be diligently prosecuted to completion; no time limit on completion is prescribed. The Minnesota and Tucson ordinances omit this portion of Section 6 altogether. It would seem advisable from the standpoint of reasonableness to include in the ordinance some provision excepting nonconforming uses under con- struction at the time of adoption. In addition to the provisions of Section 6 of the Model Ordinance, the Iowa ordinance includes authority for marking or lighting existing nonconforming uses. This is in accordance with an express provision in the Iowa statute which has been previously noted. It applies both to completed structures and those under construction at the time of adop- tion. It consists of adding a proviso at the end of Section 6 in the following language: "provided, however, that the owner of any non- conforming structure or tree is hereby required to permit the city of , at the expense of such city, to install, operate, and maintain thereon such markers and lights as shall be deemed by such city to be necessary to indicate to the operators of aircraft in the vicinity of the airport, the presence of such airport hazards." Variances, Permits, and Hazard Marking and Lighting. The pro- visions regarding variances, issuance of permits and hazard marking 38 AIRPORT ZONING and lighting are set out in Sections 7, 8, and 9 of the Model Ordinance. The other ordinances contain various adaptations of these features. The Iowa, New York, and Wisconsin ordinances include the variance provisions under the sections relating to the Airport Zoning Board of Adjustment, Board of. Appeals, and Appeals and Review, respectively. If the enabling statute provides that the zoning restrictions shall apply where a nonconforming use has been abandoned or 80 percent de- stroyed, a similar provision should be included in the ordinance. The Tucson ordinance reflects an improvement in the arrangement followed in the Model Ordinance. Since variances and hazard marking and lighting are directly related to the issuance of permits, one section pertaining to permits includes all the provisions of Sections 7, 8, and 9 of the Model Ordinance. Administrative Agency. Section 11 of the Model Ordinance pro- vides for the designation of the administrative agency to rule upon all applications for permits other than those relating to variances. The language of this Section is followed for the most part in the other ordinances. The Wisconsin ordinance contains an improved version which is much more explicit. It states that all applications for permits including variances shall be made to the administrative officer. It also specifies that the administrative officer shall provide the necessary application form. The separation of the functions of the administra- tive officer and the appeal board (Board of Adjustment) are main- tained by providing that applications for variances shall be forwarded to that body by the administrative officer. There is always a question regarding the selection of the admin- istrative officer or agency. It is the usual and preferable practice to designate the official who is currently engaged in the administration of the comprehensive zoning ordinance in the area. This will generally be the building inspector, city engineer, zoning inspector, etc., as the case might be. In some instances it may be necessary to create a separate administrative body whose sole function will be the administration of the airport zoning ordinance. This often occurs where a joint airport zoning authority has been created. Even in that case, however, it may be preferable to place the administration of the ordinance with an official of one of the political subdivisions participating in the creation of the joint airport zoning board. Appeals and the Board of Adjustment. Section 12 of the Model Ordinance creates the Board of Adjustment which serves as the ad- ministrative appeal body. This section defines its powers and composi- tion and authorizes the Board to promulgate necessary rules to govern UNIVERSITY OF ILLINOIS 39 its operations and procedures. The procedure for appealing to the Board of Adjustment is prescribed in Section 10 of the Model Ordi- nance. These provisions are incorporated in the other ordinances but the arrangements and organization vary. Among the variations is a combination of Sections 10 and 12 in a single section. The Iowa and New York ordinances include, in addition, the provisions relating to variances. The Minnesota ordinance includes several modifications which should be noted. In creating a Board of Adjustment, it establishes a qualification for membership by specifying that the " Board shall con- sist of five citizens who have been residents in the city for at least five years prior to their appointment." It also provides that the city clerk shall act as secretary to the Board and that the office of the city clerk shall be the office of the Board. This is a very practical solution of the problem of establishing an office for the Board. The local official to act as secretary and whose office is to serve as office of the Board may be varied depending on the particular circumstances. In some instances the local zoning board of appeals will be desig- nated as the administrative appeal body. In that case, the designation should be made by a separate provision adopted in lieu of Section 12. Xecessary changes should also be made in Section 10 regarding the procedure for processing appeals. When an airport zoning ordinance is adopted jointly by direct legislative action of two or more political subdivisions, special pro- vision must be made regarding the composition of the Board of Adjust- ment. Under these circumstances, the Iowa ordinance includes a pro- vision in substantially the following form: "An Airport Zoning Board of Adjustment is hereby established which shall consist of (7). . . members, two to be selected by the city council of the City of . , two to be selected by the city council of the City of . , two to be selected by the Board of Supervisors of the County of , and an addi- tional member who shall act as Chairman of the Board to be selected by a majority vote of the members selected by the Cities of , and , and the County of . The terms of the members of the Board shall be for five years except that when the Board shall first be created, of the members appointed by each City and the County, one shall be appointed for a term of two years and one for a term of four years." It should be noted that, under the Iowa statute, joint adoption of an airport zoning ordinance must be by direct action of the legislative bodies of the respective political units. There is no provision for creating a joint legislative body to act for the respective political sub- divisions as is provided by Section 3 (2) of the Model Act. In those 40 AIRPORT ZONING jurisdictions which have followed the Model Act, the special provision quoted from the Iowa ordinance is not required since the Joint Airport Zoning Board will appoint all the members of the Board of Adjustment. Judicial Review. Section 13 of the Model Ordinance provides that appeal may be taken from a decision of the Board of Adjustment in accordance with the provisions of the enabling statute. The only varia- tion in the ordinances to note on this point is that contained in the Tucson ordinance. A detailed provision following substantially the language of the enabling statute (Section 11 of the Model Act) has been included. There may be some advantage to a detailed provision of this kind in that it obviates the necessity of turning to the statute to determine the conditions governing judicial review. Miscellaneous Provisions. An airport zoning ordinance should also include provisions relating to short title, definition of terms, penalties, conflicting regulations, severability, and effective date. These appear in Sections 1, 2, 14, 15, 16, and 17 of the Model Ordinance and do not require comment. The Tucson ordinance, pursuant to the enabling statute, includes an additional section governing the amendment procedure. It provides that amendments be made in accordance with the procedure established by law for the amendment of comprehensive zoning regulations. It seems advisable to include a section relating to the amendment procedure in order to obviate any questions on this point. Composite Model Ordinance. It has been the purpose of the foregoing comments to stress the more important variations which experience has produced in the adaptation of the NIMLO Model Ordinance in particular instances. In an effort to summarize the more desirable modifications, a so-called "Composite Model Airport Zoning Ordinance" has been prepared and is included in the Appendix at page 63. It has been suggested entirely by the variations appearing in the several ordinances which have been studied; and is, therefore, a composite product of all. Creating a joint airport zoning board. In some circumstances it may be determined that a joint legislative body should be created pursuant to Section 3 (2) of the Model Act to promulgate necessary zoning regulations for an airport. When this is the case, each of the political subdivisions participating in the venture must adopt the neces- sary ordinance or resolution to authorize the creation of a joint airport zoning board. The Minnesota authorities have prepared a suggested ordinance for this purpose, and it is included in the Appendix at page 60. AIRPORT ZONING AND REGIONAL PLANNING Need for zoning airport locations. The problems encountered in airport zoning vary greatly with the location of the airport. If air- port sites were carefully selected in advance of imperative need, the problems of airport zoning would be considerably minimized, if not actually eliminated. Location of an airport in or near an area developed for industrial, commercial, and residential uses often creates imposing problems and expensive solutions. A considerable number of existing nonconforming uses will probably be encountered. Removal of these hazards in order to establish normal airport operations will entail heavy public expenditures. Height limitations upon future structures must be adopted with reference to general existing uses in the vicinity. The latter will also affect the size of the airport. An airport larger than otherwise needed may be required in order that planes may leave the airport boundaries at altitudes sufficiently safe with reference to exist- ing structures in the area. This, too, will substantially increase the cost incurred in establishing an airport. These additional costs could be avoided if there were sufficient advance planning of land uses for airports. There is another item of cost incident to the establishment of a major airport which might also be reduced. It is not a direct out-of- pocket cost although indirectly it has the same effect. This cost is represented by the depreciation in property values in the area sur- rounding the airport. A 1945 report of the Detroit Metropolitan Avia- tion Planning Authority is significant on this point. A survey was made to determine the proper location of a major airport in the Detroit area. In gauging the desirability of alternative locations, an estimate was made as to the probable effect of the airport upon property values in the vicinity of each site. At one site it was estimated that property values would be depreciated 74.4 percent within a radius of a one-half mile circle and 71 percent within the next one-half mile circle. Before considering the alleviating effect of possible me- chanical and engineering developments, it was estimated that the depreciation would amount in round figures to $13,000,000 at one site, and $6,200,000 at another. These figures were discounted to reflect anticipated technological improvements which would reduce the noise factor and other nuisance elements of airplane operation. On this basis the net depreciation for the two areas was placed at $5,739,400 and $2,703,200, respectively. If these estimates fairly reflect pro- spective depreciation of surrounding property, it suggests a similar 41 42 AIRPORT ZONING downward adjustment of assessed valuations for local tax purposes and consequent reduction of tax revenues. It also raises a question as to whether surrounding property owners should bear this burden of depreciation of their property. From a purely equitable standpoint, perhaps they should not. Yet, it is unlikely that this would be con- sidered a taking of property requiring compensation of the property owners by the political subdivision establishing the airport. If it were, the cost would be prohibitive. The financial burdens upon the local governmental units and the individual property owners could be reduced to a minimum if a munici- pality or urban region projected its major airport requirements. By forecasting its future needs for terminal facilities, the community could select suitable and adequate major airport sites and reserve these areas by adopting comprehensive zoning regulations. This would re- quire the addition of "airport use districts" to the existing types of use districts included in comprehensive zoning plans. Current uses of land in the airport use districts would be allowed to the extent that there would be no impairment of the future availability of the designated airport sites. Surrounding areas would also be zoned for uses con- sistent with the subsequent establishment of an airport. Zoning in advance of the location of an airport would result in the develop- ment of land uses in the surrounding areas harmonious with the sub- sequent establishment and operation of an airport. There would be no hazards to eliminate; there would be no need to expand the area of the airport beyond ordinary requirements; and depreciation of property would be minimized since the surrounding areas would be developed in conformance with and in recognition of the future establishment of an airport. In fact, property values would stand to be enhanced rather than depreciated. The need for planning airport locations is not limited to major airport terminals, however. There is another pressing need for airport planning. This arises with the increased use of personal planes and the consequent necessity of providing small airports to accommodate the lighter and smaller craft within reasonable access of residential areas. Increased traffic of commercial planes at major airports has and will reduce the availability of those facilities for personal and light aircraft. In some areas this need for small plane accommodations has already reached demand proportions. Recent publicity has been given to a real estate development in California planned around a small airport to serve the residents of the area. The plan involves the location of streets and lots in such a manner as to permit residents to taxi their planes from the airport to their homes. UNIVERSITY OF ILLINOIS 43 Community planning for airport facilities in residential and agri- cultural areas has recently been propounded by the Chamber of Commerce of Kansas City, Missouri, and has created widespread interest. The proposed plan is designed to meet the airport needs of smaller craft in residential areas. The details of the plan have been formulated with the view of preserving and maintaining, if not actu- ally enhancing, property values in the areas in which established. The plan envisages something more than a mere landing field. It consists of a combination of parks and airports. Recreational facilities for the community would be established in conjunction with the airport. These would include playgrounds, swimming pools, picnic areas, golf links, and country clubs. In order to insure conformance of the airpark physical plant with residential property in the area, definite standards would be established for airpark structures. The construction standards imposed in any particular instance would depend upon the average assessed valuation of structures in the airpark zone. The greater the value of surrounding residences, the higher the standards imposed upon the airpark operator. The following requirements illustrate the conditions which would be imposed upon the grant of a permit to establish an airpark: build- ings must be kept in good repair; exteriors must be painted periodically; a predetermined percentage of the entire project cost must be applied to landscaping and beautification; all aircraft must be repaired inside hangars; and airpark structures must be of rigid construction (stone, concrete, brick, etc.) where the values of residential property in the area are sufficiently high. A number of private plane owners do maintain or contemplate acquiring their own private airports. But privately owned fields op- erated only for private use are always subject to possible abatement as nuisances by owners of adjacent property. Provision in comprehensive zoning ordinances for airports available to the public to meet the needs of private plane operators in residential areas would obviate this potential threat. Airport zoning for the future. Authorities estimate that the number of civil aircraft in this country will increase within the next decade from 30,000 to more than 400,000. Airport facilities must and will keep pace with this expansion. With the aid provided under the Federal Airport Act of 1946, it is expected that the number of civil airports in the United States will increase 100 percent over a seven- year period. With the matching of Federal funds by the local and state governments, $1,000,000,000 will be added to the public investment in 44 AIRPORT ZONING airport facilities. Aviation is in its infancy and all factors point toward future development which will parallel in magnitude the rapid prog- ress which has been experienced in the more conventional forms of transportation. Airport zoning will make a very material contribution to the future development of aviation. But airport zoning for the future cannot be limited to its present function. In fact, airport zoning in its strict sense as considered herein, may be properly described as a stop-gap measure, serving the limited purpose of protecting existing facilities. After this purpose has been accomplished, it will no longer be required. Airport zoning in the future will be part and parcel of regional plan- ning. Through the operation of regional zoning, airport facilities will be adequately and economically selected and protected in advance. The selection of airport sites is by no means the only compelling factor in the background of regional planning. It is only a part of the whole fabric. Yet, in a very distinct sense it is the core of any regional plan. There are two principal reasons for this conclusion. First, the greatest incidence of urban development centers around transportation terminals; and airports are the major transportation terminals of the future. Second, we may draw upon the unfortunate experiences of the past by noting that some of the most plaguing problems currently facing our city planners arise out of the improper location of railroad terminals in our urban areas. Chicago is a notable example. The terminals required by railroads and airplanes, once established, are permanently situated. They cannot be shifted about with ease, con- venience, or economy. It is imperative then that airport facilities be located in advance in harmony with other existing and potential land uses. Two problems are presented which naturally fall within the ambit of regional planning. One is the selection of an adequate number of airport facilities of both the terminal and nonterminal classes to meet future requirements. The second is the necessity of avoiding improper spacing and overdevelopment of airport facilities. In some areas the proximity of air fields, one to the other, is hazardous and unduly re- stricts normal operation, development, and expansion. Regional plan- ning based on careful and thorough studies involving property values, land utilization, anticipated trends in air traffic, and all other pertinent factors will provide a satisfactory solution to both of the above problems. Future airport zoning as part of a regional plan requires the selec- lion of both major airport terminals and airport facilities for lighter, UNIVERSITY OF ILLINOIS 45 personal craft. The planning of the latter in conjunction with com- munity parks should provide a sound basis of selection. The selection of either will require extreme caution to insure validity. But these and other problems of regional zoning are no more insurmountable than those encountered in the embryo stages of comprehensive zoning for cities. The circumstances compelling and also sustaining the validity of comprehensive zoning on a city-wide basis apply in favor of regional zoning. Forward steps in the advance selection of airport sites through regional zoning have already been taken. King County, Washington, and Cook County, Illinois, have led the way. The post-war years have brought widespread interest and development in this area. It augurs well for the future of aviation and for the future of our communities. Forward-looking planning officials and authorities and civic and aero- nautical leaders have fostered and encouraged this development. They deserve the public gratitude and support. Appendix I MODEL STATE AIRPORT ZONING ACT 1 November 7, 1944 Civil Aeronautics Administration, U. S. Department of Commerce and National Institute of Municipal Law Officers An Act to empower municipalities and other political subdivisions to promulgate, administer, and enforce airport zoning regulations limiting the height of struc- tures and objects of natural growth, and otherwise regulating the use of property, in the vicinity of airports, and to acquire, by purchase, grant, or condemnation, air rights and other interests in land ; to provide penalties and remedies for viola- tions of this Act or of any ordinance or regulation made under the authority conferred herein ; and for other purposes. 2 (Be it enacted, etc.) Section 1. Definitions — As used in this Act, unless the context otherwise requires: (1) "Airport" means any area of land or water designed and set aside for the landing and taking-off of aircraft and utilized or to be utilized in the interest of the public for such purposes. (2) "Airport hazard" means any structure or tree or use of land which ob- structs the air space required for the flight of aircraft in landing or taking-off at an airport or is otherwise hazardous to such landing or taking-off of aircraft. (3) "Airport hazard area" means any area of land or water upon which an airport hazard might be established if not prevented as provided in this Act. (4) "Political subdivision" means any municipality, city, town, village, borough, or county. 3 1 This Model Act is the fifth model airport zoning act to be drafted and recommended by the National Institute of Municipal Law Officers, the Civil Aeronautics Administration, or both. The first and second, which were prepared by the NIMLO with CAA assistance, were issued in April 1939 and February 1940, respectively (see NIMLO Reports No. 42 and No. 59). The third, a revision of those model acts, dated January 6, 1941, was drafted by the CAA with the assistance of members of the Special Committee on Uniform Aeronautical Code of the National Conference of Commissioners on Uniform State Laws, the General Counsel of the National Association of Real Estate Boards, and others, and was recommended by the CAA for several months. Subsequently, however, the CAA withdrew its support of that model act and joined the NIMLO in recommending the fourth model act, a variation of the CAA model of January 6, 1941, which had been prepared by the NIMLO with CAA assistance and had been issued by the NIMLO under date of February 15, 1941. The present Model Act dated November 7, 1944, which is a revision of the CAA-NIMLO model act of February 15, 1941, has been drafted to improve that earlier draft in accordance with the recommendations of a conference held by the CAA in Washington, D.C., on Sep- tember 29, 1944, which was attended by several city attorneys, representatives of the Council of State Governments, and other experts on zoning or constitutional law. As so drafted, this model act has been approved by both the NIMLO and the CAA. It is recommended that this latest Model Act be enacted in all States and Territories lacking legislation which either is patterned upon one of the earlier model acts or is considered substantially equivalent and that all such legislation be amended to conform to this model in substance. . . . For an explanation of the purpose and scope of this Model Act and of the need for airport zoning, see the "interpretive statement" concerning the February 15, 1941, model act which is contained in the report of the Council of State Governments on "Suggested State War and Post-war Legislation for 1945," dated November 1, 1944. [This Model Act with footnotes has been taken from Appendix V of the pamphlet on Airport Planning for Urban Areas issued by the Civil Aeronautics Administration, June 1, 1945. A portion of this footnote relating to the adoptions of the Model Act as of November 7, 1944 has been deleted.] 2 Tliis suggested title should be altered as may be necessary to meet the usages and legal requirements of each State in which the Act is adopted. '■'■ In each State adopting the Act, this definition should be expanded to include any addi- tional types or classes of political subdivisions, governmental agencies, or public corporations of that State having legislative authority to establish or operate airports, such as airport dis- tricts, port authorities, or park districts. 46 UNIVERSITY OF ILLINOIS 47 (5) "Person" means any individual, firm, copartnership, corporation, com- pany, association, joint stock association, or body politic, 4 and includes any trustee, receiver, assignee, or other similar representative thereof. (6) "Structure" means any object constructed or installed by man, including, but without limitation, buildings, towers, smokestacks, and overhead transmission lines. (7) "Tree" means any object of natural growth. Section 2. Airport hazards contrary to public interest. It is hereby found that an airport hazard endangers the lives and property of users of the airport and of occupants of land in its vicinity, and also, if of the obstruction type, in effect reduces the size of the area available for the landing, taking-off, and maneuvering of aircraft, thus tending to destroy or impair the utility of the airport and the public investment therein. Accordingly, it is hereby declared: (a) That the creation or establishment of an airport hazard is a public nuisance and an injury to the community served by the airport in question; (b) that it is therefore necessary in the interest of the public health, public safety, and general welfare that the creation or establishment of airport hazards be prevented; and (c) that this should be accomplished, to the extent legally possible, by exer- cise of the police power, without compensation. It is further declared that both the prevention of the creation or establishment of airport hazards and the elimination, removal, alteration, mitigation, or marking and lighting of existing airport hazards are public purposes for which political subdivisions may raise and expend public funds and acquire land or property interests therein. Section 3. Power to adopt airport zoning regulations. 5 (1) In order to prevent the creation or establishment of airport hazards, every political subdivision having an airport hazard area within its territorial limits may adopt, administer, and enforce, under the police power and in the manner and upon the conditions hereinafter prescribed, airport zoning regulations for such airport hazard area, which regulations may divide such area into zones, and, within such zones, specify the land uses permitted and regulate and restrict the height to which structures and trees may be erected or allowed to grow. (2) Where an airport is owned or controlled by a political subdivision and any airport hazard area appertaining to such airport is located outside the territorial limits of said political subdivision, the political subdivision owning or controlling the airport and the political subdivision within which the airport hazard area is located may, by ordinance or resolution duly adopted, create a joint airport zoning board, which board shall have the same power to adopt, administer and enforce air- port zoning regulations applicable to the airport hazard area in question as that vested by subsection (1) in the political subdivision within which such area is located. Each such joint board shall have as members two representatives appointed by each political subdivision participating in its creation and in addition a chairman elected by a majority of the members so appointed. 6 4 In the case of a State in which the term "body politic" would not include the State itself and any of its governmental agencies, an appropriate term or terms should be added to this definition bringing any such public agency within its coverage. 5 For a comprehensive survey of court decisions and legal writings on the law of airport zoning and an analysis of the legal principles upon which such zoning is based, see Airports and the Courts, published by the NIMLO in August 1944. e It is suggested that each State consider the desirability of adding to this Section an additional subsection reading substantially as follows: "(3) If, in the judgment of a political subdivision owning or controlling an airport, the political subdivision within which is located an airport hazard area appertaining to that airport, has failed to adopt or enforce reasonably adequate airport zoning regulations for such area under subsection (1) and if that political subdivision has refused to join in creating a joint airport zoning board as authorized in subsection (2), the political subdivision owning or con- trolling the airport may itself adopt, administer, and enforce airport zoning regulations for the 48 AIRPORT ZONING Section 4. Relation to comprehensive zoning regulations. (1) Incorporation. — In the event that a political subdivision has adopted, or hereafter adopts, a comprehensive zoning ordinance regulating, among other things, the height of buildings, any airport zoning regulations applicable to the same area or portion thereof, may be incorporated in and made a part of such comprehensive zoning regulations, and be administered and enforced in connection therewith. (2) Conflict. In the event of conflict between any airport zoning regulations adopted under this Act and any other regulations applicable to the same area, whether the conflict be with respect to the height of structures or trees, the use of land, or any other matter, and whether such other regulations were adopted by the political subdivision which adopted the airport zoning regulations or by some other political subdivision, the more stringent limitation or requirement shall govern and prevail. Section 5. Procedure for adoption of zoning regulations. (1) Notice and hearing. No airport zoning regulations shall be adopted, amended, or changed under this Act except by action of the legislative body of the political subdivision in question, or the joint board provided for in Section 3 (2), after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days' notice of the hear- ing shall be published in an official paper, or a paper of general circulation, in the political subdivision or subdivisions in which is located the airport hazard area to be zoned. 7 (2) Airport zoning commission. Prior to the initial zoning of any airport hazard area under this Act, the political subdivision or joint airport zoning board which is to adopt the regulations shall appoint a commission, to be known as the airport zoning commission, to recommend the boundaries of the various zones to be established and the regulations to be adopted therefor. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and the legislative body of the political subdivision or the joint airport zoning board shall not hold its public hearings or take other action until it has received the final report of such commission. Where a city planning commission or comprehensive zoning commission already exists, it may be appointed as the airport zoning commission. Section 6. Airport zoning requirements. (1) Reasonableness. All airport zoning regulations adopted under this Act shall be reasonable and none shall impose any requirement or restriction which is not reasonably necessary to effectuate the purposes of this Act. In determining what regulations it may adopt, each political subdivision and joint airport zoning board shall consider, among other things, the character of the flying operations expected to be conducted at the airport, the nature of the terrain within the airport airport hazard area in question. In the event of conflict between such regulations and any airport zoning regulations adopted by the political subdivision within which the airport hazard area is located, the regulations of the political subdivision owning or controlling the airport shall govern and prevail." In addition, it might be desirable in the case of some States, in order to ensure the adop- tion of adequate airport zoning regulations in all cases in which such airport approach protec- tion is necessary, that still another subsection be added authorizing an agency of the State government, sucli as the State aeronautics commission, to adopt airport zoning regulations for any airport hazard area for which adequate regulations are not adopted under the preceding ubse< tions. 7 I f a State in which this Act is to be adopted has a statute authorizing the adoption of comprehensive zoning ordinances, this subsection might be revised to read substantially as follows: "In adopting, amending, and repealing airport zoning regulations under this Act, the political subdivision or joint airport zoning board shall follow the procedure prescribed by the laws of this State for the adoption, amendment, and repeal of comprehensive zoning regulations." UNIVERSITY OF ILLINOIS 49 hazard area, the character of the neighborhood, and the uses to which the property to be zoned is put and adaptable. 8 (2) Nonconforming uses. No airport zoning regulations adopted under this Act shall require the removal, lowering, or other change or alteration of any structure or tree not conforming to the regulations when adopted or amended, or otherwise interfere with the continuance of any nonconforming use, except as provided in Section 7(3). Section 7. Permits and variances. (1) Permits. Any airport zoning regulations adopted under this Act may require that a permit be obtained before any new structure or use may be con- structed or established and before any existing use or structure may be sub- stantially changed or substantially altered or repaired. In any event, however, all such regulations shall provide that before any nonconforming structure or tree may be replaced, substantially altered or repaired, rebuilt, allowed to grow higher, or replanted, a permit must be secured from the administrative agency authorized to administer and enforce the regulations, authorizing such replacement, change or repair. No permit shall be granted that would allow the establishment or creation of an airport hazard or permit a nonconforming structure or tree or nonconform- ing use to be made or become higher or become a greater hazard to air navigation than it was when the applicable regulation was adopted or than it is when the application for a permit is made. 9 Except as provided herein, all applications for permits shall be granted. (2) Variances. Any person desiring to erect any structure, or increase the height of any structure, or permit the growth of any tree, or otherwise use his property in violation of airport zoning regulations adopted under this Act, may apply to the Board of Adjustment for a variance from the zoning regulations in question. Such variances shall be allowed where a literal application or enforce- ment of the regulations would result in practical difficulty or unnecessary hard- ship and the relief granted would not be contrary to the public interest but do substantial justice and be in accordance with the spirit of the regulations and this Act: Provided, That any variance may be allowed subject to any reasonable con- ditions that the Board of Adjustment may deem necessary to effectuate the pur- poses of this Act. (3) Hazard marking and lighting. In granting any permit or variance under this Section, the administrative agency or Board of Adjustment may, if it deems such action advisable to effectuate the purposes of this Act and reasonable in the circumstances, so condition such permit or variance as to require the owner of 8 The Civil Aeronautics Administration has issued "Airport Approach Standards" indi- cating the heights to which structures and other objects generally should be restricted in the vicinity of airports of different classes. Information as to such standards, as well as the con- sulting services of airport engineers in determining the approach requirements for a particular airport, may be obtained by any political subdivision upon request to that agency. y Where the law of the State adopting this Act will permit, it is suggested that provisions be added at this point reading substantially as follows: "Whenever the administrative agency determines that a nonconforming use or noncon- forming structure or tree has been abandoned or more than 80 percent torn down, destroyed, deteriorated, or decayed: (a) No permit shall be granted that would allow said structure or tree to exceed the applicable height limit or otherwise deviate from the zoning regulations, and (b) whether application is made for a permit under this subsection or not, the said agency may by appropriate action compel the owner of the nonconforming structure or tree, at his own expense, to lower, remove, reconstruct, or equip such object as may be necessary to conform to the regulations. If the owner of the nonconforming structure or tree shall neglect or refuse to comply with such order for 10 days after notice thereof, the said agency may proceed to have the object so lowered, removed, reconstructed, or equipped and assess the cost and expense thereof upon the object or the land whereon it is or was located. Unless such an assessment is paid within 90 days from the service of notice thereof on the agent or owner of such object or land, the sum shall bear interest at the rate of percent per annum until paid, and shall be collected in the same manner as are general taxes." If any such provisions are inserted, Section 6(2) should be modified to refer to Section 7(1) as well as to Section 7(3). 50 AIRPORT ZONING the structure or tree in question to permit the political subdivision, at its own expense, to install, operate, and maintain thereon such markers and lights as may be necessary to indicate to flyers the presence of an airport hazard. Section 8. Appeals. 10 (1) Any person aggrieved, or taxpayer affected, by any decision of an ad- ministrative agency made in its administration of airport zoning regulations adopted under this Act, or any governing body of a political subdivision, or any joint air- port zoning board, which is of the opinion that a decision of such an administra- tive agency is an improper application of airport zoning regulations of concern to such governing body or board, may appeal to the Board of Adjustment author- ized to hear and decide appeals from the decisions of such administrative agency. (2) All appeals taken under this Section must be taken within a reasonable time, as provided by the rules of the Board, by filing with the agency from which the appeal is taken and with the Board, a notice of appeal specifying the grounds thereof. The agency from which the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. (3) An appeal shall stay all proceedings in furtherance of the action appealed from, unless the agency from which the appeal is taken certifies to the Board, after the notice of appeal has been filed with it, that by reason of the facts stated in the certificate a stay would in its opinion, cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by order of the Board on notice to the agency from which the appeal is taken and on due cause shown. (4) The Board shall fix a reasonable time for the hearing of appeals, give public notice and due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. (5) The Board may, in conformity with the provisions of this Act, reverse or affirm wholly or partly, or modify, the order, requirement, decision, or de- termination appealed from and make such order, requirement, decision, or de- termination as ought to be made, and to that end shall have all the powers of the administrative agency from which the appeal is taken. Section 9. Administration of airport zoning regulations. All airport zoning regulations adopted under this Act shall provide for the administration and enforcement of such regulations by an administrative agency which may be an agency created by such regulations, or any official, board, or other existing agency of the political subdivision adopting the regulations, or of one of the political subdivisions which participated in the creation of the joint airport zoning board adopting the regulations, if satisfactory to that political subdivision, but in no case shall such administrative agency be or include any member of the Board of Adjustment. The duties of any administrative agency designated pur- suant to this Act shall include that of hearing and deciding all permits under Section 7(1), but such agency shall not have or exercise any of the powers herein delegated to the Board of Adjustment. Section 10. Hoard of Adjustment. 11 (1) All airport zoning regulations adopted under this Act shall provide for a Board of Adjustment to have and exercise the following powers: '" If there is already in effect an act providing for appeals to zoning boards of adjustment or appeals, consideration should be j;iven the desirability of revising this. Section to conform thereto. " If the State has legislation which provides for the creation of boards of adjustment or appeals in connection with the adoption of comprehensive zoning regulations, consideration should he given tin- desirability of revising this Section to conform thereto. UNIVERSITY OF ILLINOIS 51 (a) To hear and decide appeals from any order, requirement, decision, or de- termination made by the administrative agency in the enforcement of the air- port zoning regulations, as provided in Section 8. (b) To hear and decide any special exceptions to the terms of the airport zoning regulations upon which such Board may be required to pass under such regulations. (c)To hear and decide specific variances under Section 7(2). (2) Where a zoning board of appeals or adjustment already exists, it may be appointed as the Board of Adjustment. Otherwise, the Board of Adjustment shall consist of five members, each to be appointed for a term of 3 years 12 by the authority adopting the regulations and to be removable by the appointing authority for cause, upon written charges and after public hearing. (3) The concurring vote of a majority of the members of the Board of Adjustment shall be sufficient to reverse any order, requirement, decision, or de- termination of the administrative agency, or to decide in favor of the applicant on any matter upon which it is required to pass under the airport zoning regu- lations, or to effect any variation in such regulations. (4) The Board shall adopt rules in accordance with the provisions of the ordinance or resolution by which it was created. Meetings of the Board shall be held at the call of the chairman and at such other times as the Board may de- termine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All hearings of the Board shall be public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall immediately be filed in the office of the Board and shall be a public record. Section 11. Judicial review. 13 (1) Any person aggrieved, or taxpayer affected, by any decision of a Board of Adjustment, or any governing body of a political subdivision or any joint air- port zoning board which is of the opinion that a decision of a Board of Adjust- ment is illegal, may present to the court a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the decision is filed in the office of the Board. (2) Upon presentation v of such petition the court may allow a writ of cer- tiorari directed to the Board of Adjustment to review such decision of the Board. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the Board, and on due cause shown, grant a restraining order. (3) The Board of Adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to sho.w the grounds of the decision appealed from and shall be verified. (4) The court shall have exclusive jurisdiction to affirm, modify, or set aside 12 If it is desired that the terms of the members of the Board overlap, provision should be made therefor. 13 If there is already in effect an act providing for appeals from the decisions of zoning boards of adjustment or appeals, consideration should be given the desirability of revising this Section to conform thereto. In addition, if it is not the law of the State that persons aggrieved by a law or regulation must exhaust the statutory remedies provided for such cases before seeking relief in the courts, it is recommended that a section or subsection be added requiring any person aggrieved by any airport zoning regulations adopted under the Act or by any decision of an administrative agency made in administering any such regulations, to apply for a permit, exception, or variance, or appeal to the Board of Adjustment, and exhaust the remedies provided for in the Act, before availing himself of the right to petition a court provided by this Section. U, OF ILL UB. 52 AIRPORT ZONING the decision brought up for review, in whole or in part, and if need be, to order further proceedings by the Board of Adjustment. The findings of fact of the Board, if supported by substantial evidence, shall be accepted by the court as con- clusive, and no objection to a decision of the Board shall be considered by the court unless such objection shall have been urged before the Board, or, if it was not so urged, unless there were reasonable grounds for failure to do so. (5) Costs shall not be allowed against the Board of Adjustment unless it appears to the court that it acted with gross negligence, in bad faith, or with malice, in making the decision appealed from. (6) In any case in which airport zoning regulations adopted under this Act, although generally reasonable, are held by a court to interfere with the use or enjoyment of a particular structure or parcel of land to such an extent, or to be so onerous in their application to such a structure or parcel of land as to con- stitute a taking or deprivation of that property in violation of the Constitution of this State or the Constitution of the United States, such holding shall not affect the application of such regulations to other structures and parcels of land. 14 Section 12. Enforcement and remedies. Each violation of this Act or of any regulations, orders, or rulings promul- gated or made pursuant to this Act, shall constitute a misdemeanor and shall be punishable by a fine of not more than $ . or imprisonment for not more than . . days or by both such fine and imprisonment, and each day a violation continues to exist shall constitute a separate offense. 13 In addition, the political subdivision or agency adopting zoning regulations under this Act may institute in any court of competent jurisdiction, an action to prevent, restrain, correct or abate any violation of this Act, or of airport zoning regulations adopted under this Act, or of any order or ruling made in connection with their adminis- tration or enforcement, and the court shall adjudge to the plaintiff such relief, by way of injunction (which may be mandatory) or otherwise, as may be proper 14 It has been suggested that provisions be included in this Model Act giving a landowner a right to compensation where the application of airport zoning regulations to his property otherwise would constitute an unconstitutional taking of his property, and prescribing the pro- cedure to be followed in obtaining such compensation. It appears that several such procedures might be devised, including: (1) The bringing of a court action by the landowner for damages; and (2) the filing of a claim for compensation with the Board of Adjustment, with the Board either (a) making the award itself, subject to appeal to a court, or (b) determining merely that compensation is due, the effect of such a decision being to require the political subdivision to bring condemnation proceedings as authorized in Section 13. The principal advantages to be gained by so providing for compensation where a zoning regulation is too great an invasion of private property rights is that this would go far to prevent the invalidation of any such regulation and permit the imposition of zoning restrictions as stringent as necessary to prevent the establishment of any airport hazard, regardless of their effect upon the property owners. However, the inclusion of any such provisions would make those political subdivisions that adopted regulations liable for damages which they could not foresee or estimate with any great degree of accuracy, which might well outweigh the advantages noted. Largely for this reason, no provisions such as those suggested have been included in this Model Act. As a result, if any regulation adopted under this Act attempted to impose a restriction upon any particular property which could not be imposed without compensation, the remedy available to the landowner would be to bring suit to have it declared unconstitutional and invalid, rather than an action for damages. This would leave it to the political subdivision or owner of the airport to acquire property interests in the property in question under Section 13, which might be deferred until this should become necessary to prevent the threatened creation of an airport hazard. While it will therefore be necessary that any airport zoning regulations adopted under this Act be carefully formulated to the end that they may be generally reasonable in their application to the property zoned, the inclusion of this subsection {(>) should help to prevent invalidation of the entire ordinance or resolution, or even any particular section thereof, where it is held unreasonable in its application to a particular structure or parcel of land. '■ It is possible that this provision may have to be modified in some States to meet con- stitutional requirements. UNIVERSITY OF ILLINOIS 53 under all the facts and circumstances of the case, in order fully to effectuate the purposes of this Act and of the regulations adopted and orders and rulings made pursuant thereto. Section 13. Acquisition of air rights. In any case in which (1) it is desired to remove, lower, or otherwise terminate a nonconforming structure or use; or (2) the approach protection necessary can- not, hecause of constitutional limitations, be provided by airport zoning regulations under this Act; or (3) it appears advisable that the necessary approach protection be provided by acquisition of property rights rather than by airport zoning regulations, the political subdivision within which the property or nonconforming use is located or the political subdivision owning the airport or served by it may acquire, by purchase, grant, or condemnation in the manner provided by the law under which political subdivisions are authorized to acquire real property for public purposes, 16 such air right, avigation easement, or other estate or interest in the property or nonconforming structure or use in question as may be necessary to effectuate the purposes of this Act. Section 14. Severability. If any provision of this Act or the application thereof to any person or cir- cumstances is held invalid, such invalidity shall not affect the provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable. Section 15. Short title. This Act shall be known and may be cited as the "Airport Zoning Act." Section 16. Repeal. All acts or parts of acts which are inconsistent with the provisions of this Act are hereby repealed. 17 Section 17. Effective date. This Act shall take effect 16 If the State does not have a general statute covering the procedure to be followed by political subdivisions in condemning land or has statutes authorizing more than one condemnation procedure for political subdivisions, this provision should be altered to refer to the particular statutory provisions which are to govern. 17 Consideration should be given the question whether the repeal should refer to specific acts. Generally speaking, if there is already in effect an act providing for the protection of airport approaches by the zoning method, express provision should be made for its repeal. 54 AIRPORT ZONING Appendix II CURRENT ENABLING STATUTES FOR AIRPORT ZONING 1 Jurisdiction Alabama . Alaska Arizona Arkansas . Connecticut Florida Georgia Hawaii Idaho . Illinois Indiana Iowa . Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan . Minnesota Mississippi Montana . Nebraska . Nevada New Hampshire New Mexico New York North Carolina North Dakota Ohio . . . Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Texas . Utah . . . Vermont . Washington Wisconsin Wyoming Citation Ala. Laws 1945, Act 402. Alaska Laws 1943, c. 23. Ariz. Laws 1945 1st Spec. Sess., c. 15. Ark. Dig. Stat. (Pope, Supp. 1944) Mun. Corp., 18, p. 979. Conn. Gen. Stat. (1930) Sec. 3096. Fla. Laws 1945, c. 23079 (No. 565). Ga. Laws 1946 Adj. Sess. Pt. I, Tit. V, No. 558. Hawaii Laws 1945, c. 182. Idaho Laws 1947, c. 130. 111. Rev. Stat. (1947) c. 15^, Sec. 48.1-48.37. Ind. Stat. Ann. (Burns, Supp. 1947) Sec. 14-422. Iowa Code (1946) Sec. 329.1-329.15. (Amended by Iowa Laws 1947, c. 182). Kan. Laws 1947, c. 13. Ky. Laws 1946, c. 49. La. Gen. Stat. Ann. (Dart, Supp. 1947) Sec. 27.40-27.50. Me. Rev. Stat. (1944) c. 21, Sec. 8-16. Md. Laws Extraord. Sess. 1944, c. 13. Mass. Ann. Laws (Supp. 1945) c. 90, Sec. 40A-45. Mich. Stat. Ann. (Henderson, Supp. 1947) Sec. 10.202, 10.227-10.229, 10.232, 10.251-10.256. Minn. Stat. (1945) Sec. 360.061-360.076. Miss. Code Ann. (1942) Sec. 7540, 7545. Mont. Laws 1947, c. 287. Neb. Rev. Stat. (Supp. 1945) Sec. 3-301 to 3-333. Nev. Laws 1947, c. 205. N. H. Rev. Laws (1942) c. 51, Sec. 78-87. N. M. Stat. Ann. (1941) Sec. 47-201 to 47-210. General Municipal Law, Sec. 355-356. N. C. Gen. Stat. (Michie, 1943) Sec. 63-29 to 63-37. N. D. Laws 1945, c. 40. Ohio Gen. Code Ann. (Page, 1945) Sec. 6310-42. Okla. Stat. Ann. (Supp. 1947) tit. 3, Sec. 101-115. Ore. Comp. Laws Ann. (Supp. 1944-1947) Sec. 45-5b01 to 45-5M4. Pa. Stat. Ann. (Purdon, Supp. 1947) tit. 2, Sec. 1550-1563. c. 1743. c. 2. (Williams, Supp. 1947) Sec. 2726.47- R. I. Laws 1946, S. D. Laws 1943, Tenn. Code Ann. 2726.61. Tex. Ann. Rev. Civ. Stat. (Vernon, 1947) art. 46e-l to 46e-15. Utah Laws 1945, c. 10. Vt. Laws 1945, Act No. 50. Wash. Rev. Stat. Ann. (Remington, Supp. 1945) Sec. 2722- 15 to 2722-29. Wis. Laws 1945, c. 235; Wyo. Comp. Stat. Ann. c. 471. Wis. Laws 1947, c. 486. (1945) Sec. 33-301 to 33-303. 1 This list includes only those statutes which have general application throughout the jurisdiction. Statutes authorizing airport zoning in limited areas have been omitted. UNIVERSITY OF ILLINOIS 55 Appendix III MODEL AIRPORT ZONING ORDINANCE (September, 1945) National Institute of Municipal Law Officers AxN ORDINANCE REGULATING AND RESTRICTING THE HEIGHT OF STRUCTURES AND OBJECTS OF NATURAL GROWTH, AND OTHERWISE REGULATING THE USE OF PROPERTY, IN THE VICINITY OF THE MUNICIPAL AIRPORT BY CREATING AIRPORT APPROACH AND TURNING ZONES AND ESTABLISHING THE BOUNDARIES THEREOF; PROVIDING FOR CHANGES IN THE RESTRICTIONS AND BOUNDARIES OF SUCH ZONES; DEFINING CERTAIN TERMS USED HEREIN; PROVIDING FOR ENFORCEMENT; ESTABLISHING A BOARD OF APPEALS; AND IMPOSING PENALTIES. 1 In pursuance of the authority conferred by Chapter of the Public Laws of 2 and for the purpose of promoting the health, safety, and general welfare 3 of the inhabitants of , by preventing the crea- tion or establishment of airport hazards, thereby protecting the lives and property of users of the Municipal Airport and of occupants of land in its vicinity and preventing destruction or impairment of the utility of the Air- port and the public investments therein; IT IS HEREBY ORDAINED BY THE OF THE , , as follows 4 : Section 1. Short Title. This ordinance shall be known and may be cited as the "Airport Zoning Ordi- nance of the " Section 2. Definitions. As used in this ordinance, unless the context otherwise requires: (1) "Airport" means the Municipal Airport. (2) "Airport hazard" means any structure or tree or use of land which obstructs the airspace required for the flight of aircraft in landing or taking-off at the airport or is otherwise hazardous to such landing or taking-off of aircraft. (3) "Nonconforming use" means any structure, tree, or use of land which does not conform to a regulation prescribed in this ordinance or an amendment thereto, as of the effective date of such regulations. (4) "Person" means any individual, firm, copartnership, corporation, com- pany, association, joint stock association, or body politic, and includes any trustee, receiver, assignee, or other similar representative thereof. (5) "Structure" means any object constructed or installed by man, including, but without limitation, buildings, towers, smoke-stacks, and overhead transmission lines. (6) "Landing area" means the area of the Airport used for the landing, take-off, or taxiing of aircraft. (7) "Tree" means any object of natural growth. 1 This title may need to be revised to meet the usages and legal requirements of your State, and the political subdivision in question. 2 This citation should be made to conform to the usual method of citing your State's laws. 3 If other terms are commonly used by the courts of your State in defining the limits of the police power, such as "convenience" or "prosperity," they should be added here. 4 The form of enacting clause commonly used by the political subdivision in question should be employed. 56 AIRPORT ZONING Section 3. Zones. In order to carry out the purposes of this ordinance all of the land within the boundaries of the and within miles of the landing area of the Airport, is hereby divided into airport approach zones and airport turning zones, the boundaries of which are shown on the Airport Ap- proach Plan numbered and dated , which is attached hereto and hereby made a part hereof. Section 4. Height Limits. Except as otherwise provided in this ordinance, no structure or tree shall be erected, altered, allowed to grow, or maintained in any airport approach zone or airport turning zone to a height in excess of the height limit herein established for such zone. For purposes of this regulation, the following height limits are hereby established for each of the zones in question: Section 5. Use Restrictions. Notwithstanding any other provisions of this ordinance, no use may be made of land within any airport approach zone or airport turning zone, in such a manner as to create electrical interference with radio communication between the Airport and aircraft, make it difficult for flyers to distinguish between airport lights and others, result in glare in the eyes of flyers using the Airport, impair visibility in the vicinity of the Airport, or otherwise endanger the landing, taking-off, or maneuvering of aircraft. 5 Section 6. Nonconforming Uses. The regulations prescribed in Sections 4 and 5 of this ordinance shall not be construed to require the removal, lowering, or other change or alteration of any structure or tree not conforming to the regulations as of the effective date hereof, or otherwise interfere with the continuance of any nonconforming use. Nothing herein contained shall require any change in the construction, alteration, or in- tended use of any structure, the construction or alteration of which was begun prior to the effective date of this ordinance, and is diligently prosecuted and com- pleted within two years thereof. Section 7. Variances. Any person desiring to erect any structure or increase the height of any structure, or permit the growth of any tree, or use his property, not in accordance with the regulations prescribed in this ordinance, may apply for a variance there- from. Such variance shall be allowed where a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the public interest but do substantial justice and be in accordance with the spirit of this ordinance. Section 8. Permits. ( 1 ) Future Uses. No material change shall be made in the use of land, and no structure or tree shall be erected, altered, planted, or otherwise established, in s If it is desired that certain particular land uses be forbidden within certain airport approach or turning zones, it is suggested that provisions be inserted in this Section, imme- diately following the heading, reading substantially as follows: "Except as otherwise provided in tliis ordinance, it shall be unlawful to put any land located within an airport approach zone or airport turning zone to any use hereby forbidden in such zone. The land uses forbidden in the various airport approach and turning zones are as follows: UNIVERSITY OF ILLINOIS 57 any airport approach zone or airport turning zone, unless a permit therefor shall have been applied for and granted. Each such application shall indicate the purpose for which the permit is desired, with sufficient particularity to permit it to be determined whether the resulting use, structure, or tree would conform to the regulations herein prescribed. If such determination is in the affirmative, the permit applied for shall be granted. (2) Existing Uses. Before any existing use, structure or tree may ,be re- ' placed, substantially altered or repaired, rebuilt, allowed to grow higher, or re- planted, within any airport approach zone or airport turning zone, a permit must be secured authorizing such replacement, change or repair. No such permit shall be granted that would allow the establishment or creation of an airport hazard or permit a nonconforming use, structure, or tree to be made or become higher, or become a greater hazard to air navigation, than it was on the effective date of this ordinance or than it is when the application .for a permit is made. Except as indicated, all applications for a permit for replacement, change or repair of existing use, structure, or tree shall be granted. Section 9. Hazard Marking and Lighting. Any permit or variance granted under Section 7 or 8 may, if such action is deemed advisable to effectuate the purposes of this ordinance and reasonable in the circumstances, be so conditioned as to require the owner of the structure or tree in question to permit the City, at its own expense, to install, operate, and main- tain thereon such markers and lights as may be necessary to indicate to flyers the presence of an airport hazard. Section 10. Appeals. (1) Any person aggrieved, or taxpayer affected, by any decision of the made in its administration of this ordinance, or the of , if of the opinion that a decision of the . . is an im- proper application of this ordinance, may appeal to the Board of Adjustment for which provision is made in Section 12. (2) All appeals taken under this Section must be taken within a reasonable time, as provided by the rules of the Board, by filing with the . . , and with the Board, a notice of appeal specifying the grounds thereof. The . shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. (3) An appeal shall stay all proceedings in furtherance of the action appealed from, unless the certifies to the Board, after the notice of appeal has been filed with it, that by reason of the facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, pro- ceedings shall not be stayed otherwise than by order of the Board on notice to the and on due cause shown. (4) The Board shall fix a reasonable time for the hearing of the appeal, give public notice and due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. (5) The Board may, in conformity with the provisions of this ordinance, reverse, or affirm, wholly or partly, or modify, the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the . (6) The Board shall make written findings of fact and conclusions of law giving the facts upon which it acted and its legal conclusions from such facts in reversing, or affirming, or modifying any order, requirement, decision, or deter- mination which comes before it under the provisions of this ordinance. 58 AIRPORT ZONING (7) The concurring vote of a majority of the members of the Board shall be sufficient to reverse any order, requirement, decision, or determination of the , or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to affect any variation in this ordinance. Section 11. Administrative Agency. The 6 is hereby designated the administrative agency charged with the duty of administering and enforcing the regulations herein prescribed. The duties of the shall include that of hearing and deciding all permits under Section 8, but the shall not have or exercise any of the powers or duties herein delegated to the Board of Adjustment. Section 12. Board of Adjustment. (1) There is hereby created a Board of Adjustment 7 to have and exercise the following powers: (a) To hear and decide appeals from any order, requirement, decision, or de- termination made by the in the enforcement of this ordinance; (b) To hear and decide special exceptions to the terms of this ordinance upon which such Board may be required to pass by subsequent ordinances ; (c) To hear and decide specific variances under Section 7. (2) The Board of Adjustment shall consist of five members, each to be ap- pointed for a term of 3 years and to be removable for cause by the 8 upon written charges and after public hearing. In the first instance, one member shall be appointed for a term of 3 years, two for a term of 2 years, and two for a term of 1 year. Thereafter each member appointed shall serve for a term of 3 years or until his successor is duly appointed and qualified. (3) The Board shall adopt rules for its governance and procedure in harmony with the provisions of this ordinance. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All hearings of the Board shall be public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating each fact, and shall keep records of its examinations and other official actions, all of which shall immedi- ately be filed in the office of the board and shall be a public record. Section 13. Judicial Review. Any person aggrieved, or taxpayer affected, by any decision of the Board of Adjustment, or the of the , may appeal to the court of as provided in Section of Chapter . of the Public Laws of 9 Section 14. Penalties. 10 Each violation of this ordinance or of any regulation, order, or ruling pro- mulgated hereunder shall be punishable by a fine of not more than $ or If the political subdivision in question has an Inspector of Buildings, it is suggested that he be designated the administrative agency for this ordinance. 7 This provision may be omitted if the political subdivision in question has already estab- lished such a Board. In that event, however, this Section should grant the powers here set out to the existing Hoard. 8 Indicate the proper appointing authority. 9 Consideration should be given the desirability of setting forth this procedure here, or, as an alternative, attaching to all copies of this ordinance a copy of excerpts from the statute cited. 10 It is possible that this Section may have to be modified to conform to the Constitution of your State. UNIVERSITY OF ILLINOIS 59 imprisonment for not more than days, or both such fine and imprison- ment, and each day a violation continues shall be a separate offense. Section 15. Conflicting Regulations. Where this ordinance imposes a greater or more stringent restriction upon the use of land than is imposed or required by any other ordinance or regulation, the provisions of this ordinance shall govern. Section 16. Severability. If any of the provisions of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other pro- visions or applications of the ordinance which can be given effect without the in- valid provision or application, and to this end the provisions of this ordinance are declared to be severable. Section 17. Effective Date. This ordinance shall take effect . Appendix IV (See pocket inside back cover for Zoning Map of Boeing Field Airport, City of Seattle and King County, Washington.) Appendix V Civil Aeronautics Administration Airport Approach Standards (Drawing No. 672; see pocket inside back cover) This drawing reflects the current airport approach standards of the Civil Aeronautics Administration. That agency is currently conducting a study pre- liminary to a revision of these standards. A draft of a proposed Technical Stand- ard Order, dated April 19, 1948, and entitled "Criteria for Determining Obstruc- tions to Air Navigation (Other Than Radio Towers)" has been circulated by the Civil Aeronautics Administration to the aeronautical industry for comments and suggestions. It is expected that a revised final draft of this order will be pre- pared and released in the near future. 60 AIRPORT ZONING Appendix VI ZONES AND HEIGHT LIMITATIONS AN EXCERPT FROM MINNESOTA MODEL AIRPORT ZONING ORDINANCE 1 (With accompanying map and drawing; see pocket inside back cover) Section 2. Zones. Subdivision 1. Approach Zones for Instrument Runways. An airport ap- proach zone is established at each end of every airport runway designated for use for instrument landings or take-offs. Such zone shall comprise all the land embraced within the following lines: (1) a line one thousand feet long running at right angles to the center line of such runway five hundred feet on either side of the center line at the end of the (paved portion of the) runway ; A (2) a line four thousand feet long running at right angles to the projected center line of such runway two thousand feet on either side thereof at a distance two miles from the first line; 15 (3) two lines making the shortest connections between the ends of the above-described lines. Subdivision 2. Other Approach Zones. An airport approach zone is estab- lished at each end of every runway not designated for use for instrument landings or take-offs. Such zone shall be 500 feet wide at the end of the runway u and 2500 feet wide at a distance of two miles from the end of the runway . E Otherwise the limits of the zone shall be measured as in the zone described in Subdivision 1 of this Section. Subdivision 3. Turning Zones. An airport turning zone is hereby established embracing the area between each two airport approach zones. The outer boundary of such zones shall be a series of intersecting arcs completely around the airport, 1 " one being swung on a two-mile radius from the midway point of the inner boundary of each airport approach zone. [Subdivision 4. Map of Zones.] All zones established by this Section shall be as indicated on the map attached hereto and made a part hereof. Section 3. Height Zones. Except as otherwise provided in this ordinance, no structure shall be con- structed, altered, or maintained, and no tree shall be allowed to grow to a height above the level of the airport in excess of the height limit in any airport approach or turning zone. The following height limits are hereby established: (a) Airport approach zones to instrument runways: one foot in height for each 40 feet in distance from the nearest point on the shortest boundary of such zone. (b) Airport approach zones to noninstrument runways: one foot in height for each 2 feet in distance from the nearest point on the shortest boundary of such zone. (c) Airport turning zones: 75 feet in height in the area within a distance of one-half mile of the nearest point on the boundary of the airport ; G in the area out- side such half-mile distance, 75 feet plus an additional one foot in height for each 2 feet in distance beyond a half-mile from the nearest point on the boundary of the airport. 1 Issued by the Department of Aeronautics, State of Minnesota. For A,I3,C,D,E,F, and G, see drawing in pocket inside hack cover. 2 The figure 20 should be inserted in case of Class I airports, and 30 for Class II, III, and IV airports. UNIVERSITY OF ILLINOIS 61 Appendix VII ZONES AND HEIGHT LIMITATIONS AN EXCERPT FROM NEW YORK MODEL AIRPORT ZONING ORDINANCE 1 Section 3. Districts. For the purpose of this ordinance all of the land within the boundaries of the (particular municipality) and within two miles of the landing area of the Airport is hereby designated as the airport approach protection area and is di- vided into the districts shown on the Airport Approach Pro- tection Plan, numbered , dated , which is attached hereto and made a part hereof, and designated as follows: (1) AH-1 Districts: Airport approach districts, (designated by yellow). (2) AH-2 Districts: Airport transition districts, (designated by blue). (3) AH-3 Districts: Airport turning districts, (designated by brown). Section 4. Height Limits. Except as otherwise provided in this ordinance no structure may be erected or altered or any tree permitted to grow or be maintained to a height which would exceed the elevation of the end of the landing strip by a vertical distance hereby established for each of the following Districts: AH-1 District: (For Class III and larger airports) One-fortieth of the shortest horizontal distance from the structure or tree to the end of the landing strip within the approach to which the structure or tree is located. (For Class I and II airports) One-twentieth of the shortest horizontal distance from the structure or tree to the end of the landing strip within the approach to which the structure or tree is located. AH-2 District: One-seventh of the shortest horizontal distance from the structure or tree to the nearest edge of the contiguous AH-1 District or landing area ; all distance to be computed at right angles to the center line of the AH-1 district or at right angles to the edge of the landing area, whichever the case may be ; said height to be exclusive of and in addition to the height permitted at the point from or to which the measurement was taken in the AH-1 district or landing area. Where alternate computations within the meaning of this definition can be made, the height shall be determined to be that which is the most restrictive. AH-3 District: One hundred fifty feet above (insert proper datum) Height Exceptions: Provisions herein contained shall not be construed to pre- vent erection of structure or growth of tree to a height of (insert permitted height) feet above the natural surface in any AH-1, AH-2, or AH-3 district. 1 Issued by Bureau of Aviation, Department of Commerce, State of New York. 62 AIRPORT ZONING Appendix VIII ZONES AND HEIGHT LIMITATIONS AN EXCERPT FROM PROPOSED ORDINANCE FOR TUCSON MUNICIPAL AIRPORT No. 2 1 (With accompanying map and drawings; see pocket inside back cover) Section 3. Zones and Map. (a) For the purpose of this ordinance, all of the land lying within an area of two miles of the landing area of the Airport is hereby divided into five (5) types of zones as follows: 1. "L" — LANDING ZONES 2. "AA" — APPROACH ZONES 3. "LT" — LANDING TRANSITION ZONES 4 „ AT „ _ APPROACH TRANSITION ZONES 5. "T" — TURNING ZONES (b) The boundaries of these zones are hereby established as shown on a map entitled "Tucson Municipal Airport Zone Map" (dated) which accompanies and is hereby made part of this ordinance, and as the same may be amended and supplemented. Section 4. Height Limits. (a) Except as otherwise provided in this ordinance, no structure or tree shall be erected, altered, allowed to grow, or maintained in any zone created by this ordinance to a height in excess of the height limit hereby established for such zone. The datum plane for measurement of such heights, except as otherwise specified, shall be the elevation of the nearest point on the center line of the nearest runway. (b) The height limit for each type of zone is hereby established as follows: (1) "L" (LANDING ZONE) —Nothing above the datum plane, except as required and as necessary and incidental to airport operations or recommended by or in accord with the rules of the Civil Aeronautics Administration. (2) "AA" (APPROACH ZONE) —One foot of height for every forty (40) feet of the shortest distance the structure or tree is from the inner boundary of the approach zone or the line of such boundary extended. (3) "LT" (LANDING TRANSITION ZONE)— One foot of height for every seven (7) feet of the shortest distance the structure or tree is from the boundary of the nearest "L" zone. (4) "AT" (APPROACH TRANSITION ZONE)— The sum of (a) the height permitted in the adjoining approach zone for the same distance from the inner boundary thereof, plus (b) one (1) foot of height for each seven (7) feet such structure or tree is distant from the side boundary of the adjoining approach zone measured horizontally along a line perpendicular to the center line of the adjoining approach zone. (5) "T" (TURNING ZONE) — 150 feet. Prepared by the Pima County Post-war Planning Board and Airport Zoning Commission. UNIVERSITY OF ILLINOIS 63 Appendix IX COMPOSITE MODEL AIRPORT ZONING ORDINANCE 1 AN ORDINANCE REGULATING THE HEIGHT OF STRUCTURES AND TREES AND THE USE OF PROPERTY IN THE VICINITY OF AIRPORT In pursuance of the authority conferred by Chapter of the Public Laws of and for the purpose of promoting the health, safety, and general welfare of the inhabitants of the City of by pre- venting the creation or establishment of airport hazards, thereby protecting the lives and property of users of the Airport and of occupants of land in its vicinity and preventing destruction or impairment of the utility of the Airport and the public investment therein ; The (City Council) of do ordain as follows: Section 1. Short Title. This ordinance shall be known and may be cited as the Airport Zoning Ordinance. Section 2. Definitions. As used in this ordinance, unless the context otherwise requires: (1) "Airport" means the Airport. (2) "Airport hazard" means any structure or tree or use of land which obstructs the airspace required for the flight of aircraft in landing or taking-off at the airport or is otherwise hazardous to such landing or taking-off of aircraft. (3) "Nonconforming use" means any structure or tree or use of land which does not conform to a regulation prescribed in this ordinance or an amendment thereto, as of the effective date of such regulations. (4) "Person" means any individual, firm, copartnership, corporation, com- pany, association, joint stock association or body politic, and includes any trustee, receiver, assignee, or other similar representative thereof. (5) "Structure" means any object constructed or installed by man, including, but without limitation, buildings, towers, smokestacks, and overhead transmis- sion lines. (6) "Tree" means any object of natural growth. (This section may be expanded, if necessary, to include additional terms.) Section 3. Zones and Map. (a) For the purpose of this ordinance, all of the land lying within an area of miles of the landing area of the Airport is hereby divided into types of zones as follows: [Indicate the zones by code letter designation and title. See provisions of Tucson ordinance, Appendix VIII, page 62. Also refer to color or other designa- tion identifying the particular zones on the zoning map. See New York ordinance, Appendix VII, page 61.] (b) The boundaries of these zones are hereby established as shown on a map entitled " Airport Zoning Map," dated , which accompanies and is hereby made part of this ordinance, and as the same may be amended and supplemented. Section 4. Height Limits. (a) Except as otherwise provided in this ordinance, no structure or tree 1 See text, page 40, for statement with respect to the source of the provisions included in this suggested ordinance. 64 AIRPORT ZONING shall be erected, altered, allowed to grow, or maintained in any zone created by this ordinance to a height in excess of the height limit hereby established for such zone. The datum plane for measurement of such heights, except as otherwise specified, shall be the elevation of the nearest point on the center line of the nearest runway. (The report on the proposed Tucson ordinance adds this word of caution: "Special aeronautical engineering consideration should be given to the full effect and meaning of the method proposed here for determining the base reference for elevation.") (b) The height limit for each type of zone is hereby established as follows: [Include specific height limitations for each of the respective zones established in Section 3. See provisions of Tucson ordinance, Appendix VIII, page 62.] Section 5. Use Restrictions. Except as otherwise provided in this ordinance, it shall be unlawful to put any land located within any zone hereby created to any of the following prohibited uses: (1) Transformer stations (2) High power transmission lines (3) Manufacturing establishments or other uses which produce smoke inter- fering with the safe use of the Airport (4) All plants and businesses of every kind which emit or discharge gases and odors that would interfere with the health or safety of the public in the use of the Airport (5) Businesses or structures of any kind that may be detrimental or injurious to the health, safety, and general welfare of the public in the use of the Airport (6) Any other use which would create electrical interference with radio com- munication between the Airport and aircraft, make it difficult for flyers to dis- tinguish between airport lights and others, result in glare in the eyes of flyers using the Airport, impair visibility in the vicinity of the Airport, or otherwise endanger the landing, taking-off, or maneuvering of aircraft. Section 6. Spacing Adjacent Airports. (a) Within a radius of eight (8) miles from the center of - . - Airport no airport of Class I or greater, as hereinafter defined, shall be established unless permit therefor shall have been applied for and granted, in accordance with the provisions of this ordinance. (b) Except as otherwise provided, the minimum distance between Airport and any other airport hereafter established, measured from center to center, shall be not less than provided in the following schedule: Class of Other Airport Distance from . Airport I 5 miles II 6 miles III 7 miles IV 8 miles (c) Airport classification for the purpose of this ordinance shall be in ac- cord with the following schedule: Length of Longest Runway Class Under 3300 I 3300 ft. to 4300 ft II 4300 ft. to 5300 ft Ill Over 5300 ft IV (<]) Exceptions to the spacing requirements hereinbefore provided in this Section may be granted by the Board of Adjustment, which is hereby authorized to allow lesser distances between Airport and any other air- UNIVERSITY OF ILLINOIS 65 port proposed to be established, but only after public hearing duly held in accord with the provisions of this ordinance, and where, owing to special conditions, the Board of Adjustment duly finds that a literal enforcement of these provisions would result in unnecessary hardship and such variance would not be contrary to the public interest. Prior to granting any such exception or variance, the Board of Adjustment shall, for the purpose of study and recommendation, refer the matter to the Civil Aeronautics Administration and to any aviation commission, airport zoning com- mission, and any local planning body having jurisdiction within the area affected. If any of the aforementioned bodies to whom the matter shall have been referred does not within forty-five (45) days transmit a report to the Board of Adjustment, then it shall be deemed to have approved the proposal, provided, however, that upon request of any said body, the Board of Adjustment shall grant a reasonable extension of such time. In granting such exception or variance the Board of Adjustment shall impose special conditions which will ensure that the public interest is maintained. Section 7. Existing Nonconforming Uses. (a) Regulations Not Retroactive. The regulations prescribed by this ordinance shall not be construed to require the removal, lowering, or other change or altera- tion of any structure or tree not conforming to the regulations as of the effective date hereof, or otherwise interfere with the continuance of any nonconforming use. Nothing herein contained shall require any change in the construction, alteration, or intended use of any structure, the construction or alteration of which was begun prior to the effective date of this ordinance, and is diligently prosecuted and completed within two years thereof. (b) Marking and Lighting. Notwithstanding the preceding provisions of this Section, the owner of any nonconforming structure or tree is hereby required to permit the installation, operation, and maintenance thereon of such markers and lights as shall be deemed necessary by the (administrative officer) to indicate to the operators of aircraft in the vicinity of the Airport, the presence of such airport hazards. Such markers and lights shall be installed, operated, and maintained at the expense of the (City of ) (This subsection would be applicable in those jurisdictions whose enabling statutes authorize lighting and marking of existing nonconforming uses.) Section 8. Administrative Officer. It shall be the duty of the to administer and enforce the regu- lations prescribed herein. Applications for permits and variances shall be made to the upon a form furnished by him. Applications which are by this ordinance to be decided by the shall be promptly considered and granted or denied by him. Applications for action by the Board of Adjust- ment shall be forthwith transmitted by the to the Board for hear- ing and decision. (Insert in the blanks the title of the local officer who is to ad- minister the ordinance. It may be the zoning inspector, building inspector, city engineer, etc.) Section 9. Permits. (a) Future Uses. No material change shall be made in the use of land, and no structure or tree shall be erected, altered, planted, or otherwise established, in any zone hereby created, unless a permit therefor shall have been applied for and granted. Each such application shall indicate the purpose for which the permit is desired, with sufficient particularity to permit it to be determined whether the resulting use, structure, or tree would conform to the regulations herein prescribed. If such determination is in the affirmative, the permit shall be granted. 66 AIRPORT ZONING (b) Existing Uses. Before any existing use, structure, or tree may be re- placed, substantially altered or repaired, rebuilt, allowed to grow higher, or re- planted, within any zone hereby created, a permit must be secured authorizing such replacement, change, or repair. No such permit shall be granted that would allow the establishment or creation of an airport hazard or permit a nonconform- ing use, structure, or tree to be made or become higher, or become a greater hazard to air navigation, than it was on the effective date of this ordinance or amendment, or than it is when the application for a permit is made. Except as indicated, all applications for such a permit shall be granted. (c) Nonconforming Uses Abandoned or Destroyed. Whenever the (administrative officer) determines that a nonconforming structure or tree has been abandoned or more than 80 percent torn down, physically deteriorated, or decayed, (a) no permit shall be granted that would allow such structure or tree to exceed the applicable height limit or otherwise deviate from the zoning regula- tions, and (b) whether application is made for a permit under this paragraph or not, the . . .(administrative officer) may by appropriate action compel the owner of the nonconforming structure or tree, at his own expense, to lower, remove, reconstruct, or equip such object as may be necessary to conform to the regulations or, if the owner of the nonconforming structure or tree shall neglect or refuse to comply with such an order after ten days' notice thereof, the . (administrative officer) may proceed to have the object so lowered, re- moved, reconstructed, or equipped, and assess the cost and expense thereof upon the object or the land whereon it is or was located. Unless such an assessment is paid within 90 days from the service of notice thereof on the agent or owner of such object or land, the sum shall bear interest at the rate of percent per annum until paid, and shall be collected in the same manner as are general taxes. Except as indicated herein, all applications for permits for replacement, change, or repair of nonconforming uses shall be granted. (This subsection would be ap- plicable only in jurisdictions which authorize this action in its enabling statute.) (d) Variances. Any person desiring to erect or increase the height of any structure, or permit the growth of any tree, or use his property, not in accordance with the regulations prescribed in this ordinance, may apply to the Board of Ad- justment for a variance from such regulations. Such variance shall be allowed where it is duly found that a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the public interest but do substantial justice and be in accordance with the spirit of this ordinance. (e) Hazard Marking and Lighting. Any permit or variance granted may, if such action is deemed advisable to effectuate the purposes of this ordinance and reasonable in the circumstances, be so conditioned as to require the owner of the structure or tree in question to permit the (City of . . . ) at its own expense, to install, operate, and maintain thereon such markers and lights as may be necessary to indicate to flyers the presence of an airport hazard. Section 10. Appeals. (a) Any person aggrieved, or taxpayer affected, by any decision of the (administrative officer) made in his administration of this ordinance, or any governing body of a political subdivision, (or any joint airport zoning board), if of the opinion that a decision of the (administrative officer) is an improper application of these regulations of concern to such governing body (or board), may appeal to the Board of Adjustment. (b) All appeals hereunder must be taken within a reasonable time, as provided by the rules of the Board of Adjustment, by filing with the (admin- istrative officer) and with the Board, a notice of appeal specifying the grounds thereof. The (administrative officer) shall forthwith transmit UNIVERSITY OF ILLINOIS 67 to the Board all the papers constituting the record upon which the action appealed from was taken. (c) An appeal shall stay all proceedings in furtherance of the action appealed from, unless the . (administrative officer) certifies to the Board, after the notice of appeal has been filed with it, that by reason of the facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or prop- erty. In such case proceedings shall not be stayed otherwise than by order of the Board and on due cause shown. (d) The Board shall fix a reasonable time for the hearing of the appeal, give public notice and due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney. (e) The Board may, in conformity with the provisions of this ordinance, reverse or affirm, wholly or partly, or modify, the order, requirement, decision, or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the . . (administrative officer) Section 11. Board of Adjustment. (a) There is hereby created a Board of Adjustment to have and exercise the following powers: (1) To hear and decide appeals from any order, requirement, decision, or determination made by the (administrative officer) in the enforcement of this ordinance; (2) To hear and decide special exceptions to the terms of this ordinance upon which such Board may be required to pass under such regulations; (3) To hear and decide specific variances under Section 9(d). (b) The Board of Adjustment shall consist of five citizens who have been residents in the (city). . . for at least 5 years prior to their appointment. Each member shall be appointed by the . . -(city council) and shall serve for a term of 3 years and until his successor is duly appointed and qualified. Of the members first appointed, one shall be appointed for a term of 1 year, two for a term of 2 years and two for a term of 3 years. Members shall be removable by the (city council). . for cause after a public hearing. No compensation shall be paid the members of the Board, except reimbursement of actual expenses incurred in the fulfillment of their duties. The . ___(city clerk) shall act as secretary to the Board. (c) The Board shall adopt rules for its governance and procedure in harmony with the provisions of this ordinance. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may de- termine. The Chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All hearings of the Board shall be public. The Board shall keep minutes of its proceedings showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall immediately be filed in the office of the (city clerk). . . and shall be a public record. The office of the (city clerk) shall be the office of the Board. Upon their appointment the members of the Board shall select a chairman to act at the pleasure of the Board. (d) The Board shall make written findings of fact and conclusions of law giving the facts upon which it acted and its legal conclusions from such facts in reversing, or affirming, or modifying any order, requirement, decision, or de- termination which comes before it under the provisions of this ordinance. (e) The concurring vote of a majority of the members of the Board shall be sufficient to reverse any order, requirement, decision, or determination of the (administrative officer) , or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to effect any variation in this ordinance. 68 AIRPORT ZONING Section 12. Judicial Review. (a) Any person aggrieved, or taxpayer affected, by any decision of the Board of Adjustment, or any governing body of a political subdivision (or any joint airport zoning board) which is of the opinion that a decision of the Board of Adjustment is illegal, may present to the court a verified peti- tion setting forth that the decision is illegal, in whole or in part, and specifying the grounds of illegality. Such petition shall be presented to the court within thirty days after the decision is filed in the office of the Board. (b) Upon presentation of such petition the court may allow a writ of certiorari directed to the Board of Adjustment to review such decision of the Board. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the Board and on due cause shown, grant a restraining order. (c) The Board of Adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. (d) The court shall have exclusive jurisdiction to affirm, modify, or set aside the decision brought up for review, in whole or in part, and, if need be, to order further proceedings by the Board of Adjustment. The findings of fact of the Board, if supported by substantial evidence, shall be accepted by the court as conclusive, and no objection to a decision of the Board shall be considered by the court unless such objection shall have been urged before the Board or, if it was not so urged, unless there were reasonable grounds for failing to do so. (e) Costs shall not be allowed against the Board, unless it appears to the court that it acted with gross negligence, in bad faith, or with malice, in making the decision appealed from. ( f ) In any case where these regulations, although generally reasonable, are held by a court to interfere with the use or enjoyment of a particular structure or parcel of land to such an extent, or to be so onerous in their application to such a structure or parcel of land, as to constitute a taking or deprivation of that property in violation of the constitution of this state or the constitution of the United States, such holding shall not affect the application of such regulations to other structures and parcels of land. (This Section on judicial review should conform to the related provisions of the enabling statute.) Section 13. Penalties. Each violation of this ordinance or of any regulation, order, or ruling pro- mulgated hereunder shall constitute a misdemeanor and be punishable by a fine of not more than $ or imprisonment for not more than days or both such fine and imprisonment, and each day a violation continues to exist shall constitute a separate offense. Section 14. Conflicting Regulations. Where this ordinance imposes a greater or more stringent restriction upon the use of land than is imposed or required by any other ordinance or regulation, the provisions of this ordinance shall govern. Section 15. Amendments. (Jt may be advisable to include a section specifically describing the procedure to be followed in amending the ordinance. The Tucson ordinance provides that "amendment or repeal of all or part of this ordinance shall be done in accord with the procedure prescribed by law for the adoption, amendment, and repeal of com- prehensive zoning regulations.") UNIVERSITY OF ILLINOIS 69 Section 16. Severability. If an}' of the provisions of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other pro- visions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are declared to be severable. Section 17. Effective Date. This ordinance shall be in full force and effect from and after its adoption. ADOPTED ON THE DAY OF 19 70 AIRPORT ZONING Appendix X PROPOSED ORDINANCE FOR USE BY MINNESOTA MUNICIPALITIES IN CREATING A JOINT AIRPORT ZONING BOARD 1 JOINT AIRPORT ZONING BOARD ORDINANCE NO. 2 AN ORDINANCE ESTABLISHING THE . JOINT AIRPORT ZONING BOARD AND DEFINING ITS POWERS AND DUTIES The city 3 council of ordains as follows: Section 1. JOINT AIRPORT ZONING BOARD. There is hereby created the joint airport zoning board pursuant to Laws 1945, Ch. 303, Section 26. The board shall consist of five members 4 as follows: a member of the city council and one citizen member, both appointed by the city council ; a member of the board of county commissioners of . county and one citi- zen member, both appointed by the board ; and one citizen member, who shall act as chairman, elected by a majority of the other four members."" Of the members first appointed, one appointed by the council, one appointed by the county board, and the chairman shall serve for terms ending 6 ; and the other two shall be appointed for terms ending 7 . Thereafter the chair- man shall serve for a term of one year and other members shall be appointed for terms of two years. Both original and successive appointees shall serve until their successors are appointed and qualified. Vacancies shall be filled for the unexpired portion of the term by the appropriate appointing body. Members shall serve without compensation. The city clerk 8 shall act as secretary of the joint airport zoning board but shall not be a member. Section 2. POWERS AND DUTIES. The joint airport zoning board shall adopt, administer, and enforce airport zoning regulations for the airport hazard areas in the vicinity of the Airport as provided in Laws 1945, Ch. 303, Section 24 to 36. 1 Issued by the Department of Aeronautics, State of Minnesota. 2 County boards may substitute the term "resolution" wherever the term "ordinance" appears. The words "board of county commissioners" or "board" should be used in such cases instead of "council." 3 "Village" or "borough" should be substituted throughout the ordinance where appropriate. 4 If the airport hazard areas are in more than one county, the number of the board members should be increased so that there will be two members from each county. For example, if two counties are involved this sentence may read somewhat as follows: "The board shall consist of seven members as follows: a member of the city council and one citizen member, both appointed by the city council; a member of the board of county com- missioners of county and one citizen member, both appointed by the county board; a member of the board of the county commissioners of county and one citizen member, both appointed by the county board; and one citizen member, who shall act as chairman, elected by a majority of the other six members." 5 The law appears to contemplate that the joint airport zoning board will be permanent in character since it must adopt and enforce the zoning regulations. The state act does not, however, specify the composition of the board in detail, providing only that two members should be ap- pointed by each of the participating agencies. Other possibilities may be preferred in some communities. For example, the mayor and the chairman of the county board could be made ex officio members, or all the members could be appointed from citizens who are not officials. Terms may be lengthened or shortened as desired. fi The date should be approximately one year after the date of the ordinance. It may be desirable, however, to have the date coincide with the beginning of the political year of either the county or the municipality. 7 The date should be one year later than the date inserted in the previous blank. h The term "recorder" should be substituted in a few cities. UNIVERSITY OF ILLINOIS 71 Section 3. ADMINISTRATIVE AGENCY. If airport zoning regulations proposed by the joint airport zoning board designates an administrative agency of the city or county as the administrative agency to administer and enforce such regulations, such designation shall be submitted to the city council and the county board for approval, which shall be granted by resolution adopted by each body. 9 Section 4. DATE OF EFFECT. This ordinance shall take effect upon its passage and publication. 10 Passed the Citv Council this day of . 19 M; (SEAL) Attest: Clerk Published in . on . 19- 9 The aeronautics code provides that, if the administrative agency chosen to enforce the zoning regulations is an established agency of the county or city, the selection must be satis- factory to the other subdivision. This provision has been included in the ordinance to meet this requirement of the law. If desired, the approval may be given in comprehensive fashion in advance somewhat as in the following provision: "Section 3. Approval is hereby given in advance to the designation in the airport zoning regulations adopted by the joint airport zoning board of any administrative agency of either the county or the city as the administrative agency to administer and enforce such regulations." 10 This provision will have to be altered in some cities to meet requirements of home rule charters. If the corresponding resolution has not already been passed by the county board, this provision may be altered to read somewhat as follows: "This ordinance shall take effect upon adoption of a corresponding resolution by the county board." The effective date may be similarly altered in the county board resolution if the city has not yet acted when the resolution is adopted. 11 The term "president" should be substituted in villages and a few cities and the term "chairman" should be used in the case of counties. 72 AIRPORT ZONING Appendix XI MUNICIPAL AIRPORT LOCATED OUTSIDE CITY LIMITS REQUEST TO COUNTY BOARD TO ADOPT AIRPORT ZONING REGULATIONS Prepared for Use by Minnesota Municipalities 1 To the Board of County Commissioners of : County: The city council of respectfully requests your body to [adopt airport zoning regulations] 2 applicable to the hazard areas in the vicinity of . . . . . Airport in accordance with the provisions of Laws 1945, Ch. 303, Sections 24 to 36. Dated at . . __, 19 Attest: Mavor City Clerk 1 Issued by the Department of Aeronautics, State of Minnesota. 2 If the council wishes to have the regulations adopted by a joint board, there may be substituted for the words between the brackets the following: "join with it in the creation of a joint airport zoning board to adopt, administer, and enforce airport zoning regulations." The municipality may proceed to zone alone if the county board refuses to join in creation of a joint board or if it fails to adopt regulations within sixty days after a request to do so. UNIVERSITY OF ILLINOIS 73 Appendix XII: References BOOKS Froesch, Charles, and Prokosch, Walther, Airport Planning, pp. 87-88; 114-123. New York: John Wiley & Sons, 1946. Glidden, Horace K., Law, Hervey F., and Cowles, John E., Airports: Design, Construction, and Management, Chapters 9 and 16. New York: McGraw- Hill, 1946. Rhyne, Charles S., Airports and the Courts, Chapter 8, Washington, D.C.: National Institute of Municipal Law Officers, 1944. Wood, John W., Airports: Some Elements of Design and Future Development, Appendix 7, pp. 317-318. New York: Coward-McCann, 1940. Hubbard, Henry V., McClintock, Miller, and Williams, Frank B., Airports: Their Location, Administration and Legal Basis, pp. 124-131. Harvard City Planning Studies, I. Cambridge: Harvard University Press, 1930. COURT DECISIONS United States v. Causby, 328 U. S. 256, 66 S. Ct. 1062, 1946 U. S. Av. Rep. 235 (1946). (It was held that aircraft flights over one's land may constitute a taking of his property if they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.) Vara Engineering Corp. v. City of Nezvark, 132 N.J.L. 370, 40 A. (2d) 559, 1945 U. S. Av. Rep. 117 (1945). (Airport zoning regulations were held invalid in the absence of an enabling statute.) United States v. 357.25 Acres of Land, 55 F. Supp. 461, 1944 U. S. Av. Rep. 36 (W. D. La., 1944). (An avigation easement over adjacent land to begin at 25 feet was held to have no value where local zoning regulations prohibited the erection of structures thereon in excess of 25 feet in height.) Burnham v. Beverly Airways, Inc., 311 Mass. 628, 42 N.E. (2d) 575 (1942). (The court indicated by dictum its approval of the enabling statute authorizing airport zoning.) Mutual Chemical Co. v. Mayor and City Council of Baltimore, 1939 U. S. Av. Rep. 11 (Cir. Ct. No. 2, Bait., Jan. 25, 1939). (An airport zoning ordinance was held invalid where the regulations limited the height of structures to 5 feet in some areas of the particular tract. The court took the position that airport zoning regulations do not promote the general public interest but benefit only those who use "air transportation facilities.) LAW REVIEW ARTICLES Leavitt, I. Martin, "The Landowner Versus the Airport," 50 W. Va. L. Q. 145 (1947). Rhvne, Charles S., "Airport Legislation and Court Decisions," 14 J. Air L. & C. "289 (1947). "Constitutional Law — Airport Zoning Legislation," 19 Tenn. L. Rev. 858 (1947). Hunter, John M., Jr., "The Conflicting Interests of Airport Owner and Nearby Property Owner," 11 Law & Contemp. Prob. 539 (1946). Noel, Dix W., "Airports and Their Neighbors," 19 Tenn. L. Rev. 563 (1946). Smylie, Robert E., "Constitutionality of Federal Airport Zoning," 12 Geo. Wash. L. R. 1 (1943). 74 AIRPORT ZONING Grant, I., "Constitutionality of Zoning Laws Enacted to Protect Airport Ap- proaches," 13 J. Air L. & C. 272 (1942). Hunter, John M., Jr. and Ulman, Lewis H., "Airport Legal Developments of Interest to Municipalities — 1941," 13 J. Air L. & C. 116 (1942). Lord, Leo C, "Validity of Prospective Airport Zoning," 30 Geo. L. J. 386 (1942). Hunter, John M., Jr., "Airport Legal Developments of Interest to Municipalities — 1940," 12 J. Air L. & C. 148 (1941). Rhyne, Charles S., "The Legal Experience of Airports," 11 J. Air L. & C. 297 (1940). Reprinted as National Institute of Municipal Law Officers, Report No. 68. Freeman, Lee A., "Municipal Airport ; Protection of Airport Approaches ; Zoning as Exercise of Police Power," 10 J. Air L. 424 (1939). Grover, Robert L., "The Legal Basis of Municipal Airports," 5 J. Air L. 410 (1939). Rohlfing, Charles C, "The Airport Approach," 4 Air L. Rev. 144 (1933). Elliott, Shelden D., "Unobstructed Airport Approaches," 3 J. Air L. 207 (1932). Newman, Arthur L., II, "Airports and a Way of Necessitv," 1 Air L. Rev. 458 (1930). MAGAZINE ARTICLES Ross, John C, "Airport Test Case," Flying, May, 1948, Vol. 42, No. 5, p. 30. "Airport Legal Battles Point to Future Handling Problems," Aviation Week, February 9, 1948, Vol. 48, No. 6, p. 36. "Hangar-Home Subdivision," American Society of Planning Officials — News Letter, December, 1946, Vol. 12, No. 12, p. 99. Boochever, George, "Legal Notes on Air Transportation," Air Transportation, October, 1946, Vol. 9, No. 4, p. 70. Challinor, G. Richard, "Kansas City's Zoning Plan," Southern Flight, July, 1946, Vol. 26, No. 1, p. 44. Williams, Frank B., "Airport Zoning," The American City, Julv, 1946, Vol. 61, No. 7, pp. 129-131. "Airport Zoning Plan Suggests Attractive and Practical Bases," American Avia- tion, July 15, 1946, Vol. 10, No. 4, p. 52. "Airpark Zoning Plan Set by K. C. Group," Aviation News, July 8, 1946, Vol. 6, No. 2, p. 15. "Zoning of Municipal Airports in Wisconsin," The Municipality, June, 1946, Vol. 41, No. 6, p. 125. (Includes Wisconsin model ordinance.) Henderson, Cyril McC, "The Zoning of Airports," Tennessee Planner, December, 1945, Vol. 6, No. 3, pp. 75-81. "Airport Damage to Surrounding Property," American Society of Planning Offi- cials—News Letter, December, 1945, Vol. 11, No. 12, p. 98. "Some Effects of Air Transportation on the City Plan," Landscape Architecture, October, 1945, Vol. 36, No. 1, p. 3. "Airport Zoning," National Aeronautics, June, 1945, Vol. 23, No. 6, p. 12. UNIVERSITY OF ILLINOIS 75 Williams, Frank B., "Airport Zoning," The American City, May, 1945, Vol. 60, No. 5, p. 137. Blucher, W. H., "Airport Zoning Held Illegal," American Society of Planning Officials — Nczvs Letter, March, 1945, Vol. 11, No. 3, p. 31. Hunter, John M., Jr., "Zone Now to Save Airports and Lives," Airports, Sep- tember, 1944, Vol. 6, No. 3, p. 30. Rhyne, Charles S., "The Law and Airports," Southern City, September, 1944, Vol. 8, No. 9, pp. 7-8. Rhyne, Charles S., "Airports Must Be Properly Zoned," Southern City, August, 1944, Vol. 8, No. 8, pp. 3-4. "Attempted Restrictions on Air Use Present New Airport Problem," Engineering News-Record, May, 1944, Vol. 132, No. 20, p. 755. "Farmer's Injunction Closes Allentown Airport to United," American Aviation, April 15, 1944, Vol. 7, No. 22, pp. 27-28. Fabian, Robert H., Cowley, Leonard M., Hart, Gerald T., "Appraising the Right of Flight," The Appraisal Journal, January, 1944, Vol. 12, No. 1, p. 9-13; April, 1944, Vol. 12, No. 2, pp. 127-131 ; July, 1944, Vol. 12, No. 3, pp. 245-252. Kelly, Bliss, "Airport Hazards," Flying, September, 1943, Vol. 33, No. 3, p. 51. Williams, Frank B. and Bassett, Edward M., "Airport Zoning," The American City, February, 1942, Vol. 57, No. 2, p. 105. Vogel, Joshua H., "Airport Protection by Zoning and Neighborhood Planning," The American City, September 1941, Vol. 56, No. 9, pp. 60-61. "Toward Safer Flight," Civil Aeronautics Journal, September, 1941, Vol. 2, No. 17, pp. 218-219. Blucher, W. H., "Airport Zoning," American Society of Planning Officials — News Letter, February, 1941, Vol. 7, No. 2, p. 9. Bassett, Edward M., "Can the Circle of Land Surrounding an Airport Be Zoned Under the Police Power to Regulate Heights of Buildings?" Planning and Civic Comment, January-March, 1940, Vol. 6, No. 1, pp. 9-11. Oppermann, Paul P., "Zoning of Airports and Adjacent Land," The Planners' Journal, July-August, 1938, Vol. 4, No. 4, p. 86. Williams, Frank B., "Legal Consideration in the Planning of Airports," The Annals of the American Academy of Political and Social Science, May, 1931, Vol. 155, Part II, pp. 43-46. PAMPHLETS AND REPORTS Hunter, John M., Jr., "Problems of Airport Zoning," paper presented at the An- nual Planning Conference of the American Society of Planning Officials in New York, N. Y., May 6, 1946. Published by Department of Commerce, Civil Aeronautics Administration, Office of Airports. Air Transport Association of America, Airline Airport Design Recommendations, Part II — Airport Obstructions, Approaches, and Zoning, Washington, D.C. (1946). Civil Aeronautics Administration, Airport Planning for Urban Areas, Depart- ment of Commerce, Washington, D.C, 1945. 76 AIRPORT ZONING American Municipal Association, Report No. 145, Municipalities and Airport Zoning, February, 1941. Knotts, Howard, "Airport Zoning and Protection of Airport Approaches," Pro- ceedings Thirty-Eighth Annual Convention, American Road Builders' Associa- tion, 1941, pp. 347-350. Mclntire, John A. and Rhyne, Charles S., Airport Approach Protection Materials, Model Statute and Ordinance, National Institute of Municipal Law Officers, Report No. 59, Feb., 1940. Alclntire, John A. and Rhyne, Charles S., Airports and Airplanes and the Legal Problems They Create for Cities, National Institute of Municipal Law Offi- cers, Report No. 42, April, 1939. American Society of Planning Officials and American Municipal Association, The Airport Dilemma, pp. 42-43. Chicago: Public Administration Service, Publi- cation No. 62, 1938. U. S. Department of Commerce, Aeronautics Branch, Report of Committee on Airport Zoning and Eminent Domain, Air Commerce Bulletin, January, 1931, Vol. 2, No. 13, p. 325. BIBLIOGRAPHIES Civil Aeronautics Administration, Office of Airports, "Selected References on Air- port Approach Protection and Rights in Airspace," Department of Commerce, Washington, D.C., 1947. Shillaber, Caroline, "Airport Zoning: A Selected Bibliography," Landscape Archi- tecture, October, 1945, Vol. 36, No. 1, p. 4. American Society of Planning Officials, "A Short Selected Bibliography on Air- ways and Airport Planning and Protection of Approaches, With Annotations," Chicago, 1943. (39428) UNIVERSITY OF ILLINOIS-URBANA 3 0112 005630444