Wednesday, September 19, 2007, 9:25 AM

COA Holds Federal Aviation Law Does Not Preempt Local Land Use Laws

In Davidson County Broadcasting Inc. v. Rowan County Board of Commissioners filed this week, the COA held that federal regulation of navigable airspace does not preempt a county from enacting local land-use ordinances relating to aviation.

Davidson planned to build a radio tower and got a "no hazard" letter from the Federal Aviation Administration. But the County Board denied Davidson a special use permit to build the tower. The Board found that the radio tower would negatively impact safety relating to a private air port in the area, Miller Air Park.

Davidson claimed that local regulation by land use laws was supplanted by field and conflict preemption. The COA disagreed. The COA did not directly analyze field preemption, i.e., where the U.S. Congress so occupies a field that states are left no room to supplement. The COA suggested, though, that field preemption does not exist, e.g., by citing the FAA's "no hazard" letter stating that the radio tower was still subject to local regulation.

The COA instead focused on conflict preemption, i.e., whether a given state authority conflicts with and is displaced by federal authority. The COA held that no conflict preemption existed here. The COA focused on the "no hazard" letter, which expressly indicated that it did not lift compliance responsibilities relating to state or local regulations. The COA also focused on an FAA letter to the County Board not only permitting but encouraging local regulation to maintain the safety of private use airports, which the FAA indicated it neither regulated nor considered in issuing its "no hazard" letter.

The COA therefore indicated that no conflict preemption existed where the federal regulator not only acknowledged but encouraged local regulation and where otherwise a regulatory loophole would exist.

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