In the United States, the federal government plays the primary role in setting aviation policy and ensuring air safety. In a recent ruling involving Rowan County, the state’s second highest court has held that local governments, too, have a role to play through zoning to protect the airspace around public and private airports.

In reaching that conclusion, the court upheld a decision by Rowan County to reject plans for a radio tower that it found would constitute a hazard to pilots flying into a private airport.

In early 2005, Davidson County Broadcasting applied for a conditional-use permit to erect a 1,350-foot radio tower on land owned by Richard and Dorcas Parker. The Rowan County Board of Commissioners conducted three public hearings on the permit request before rejecting the application Nov. 21, 2005.

DCBI and the Parkers asked that the state’s courts review the county commission’s decision. After a Superior Court judge ruled the county had acted properly, they brought the case before the N.C. Court of Appeals.

Central to the appeal was the Rowan County commission’s determination (emphasis in original) that “hazardous safety conditions will result from the approval of the use.” The hazard that the commission found was to the flying public, specifically to pilots flying into and out of the private Miller Air Park airfield.

Upon appeal, DCBI and the Parkers contended that the Rowan County was prohibited from considering effects on Miller Air Park because air safety falls under federal, not local, jurisdiction. The Federal Aviation Administration had, in turn, investigated the effect that the radio tower would have and had issued a “determination of no hazard to air navigation” finding.

“Some courts have held that the state or local zoning regulation of radio towers is preempted by the federal aviation regulations,” Judge Donna Stroud wrote for the Court of Appeals.

“However, a majority of courts in the United States which have considered the issue have held that federal aviation law does not preempt all local or state land use regulation which may affect aviation.”

The court analyzed whether Rowan County’s zoning and federal law where inherently in conflict. The appeals court found that they were not. “In this case, there is no conflict between the federal aviation law and Rowan County’s zoning law,” Stroud wrote.

Stroud noted that the FAA’s “no hazard” determination applied only to the proposed tower’s effects on public airfields such as the Rowan County Airport. Because Miller Air Park is a private airfield, the FAA cannot and did not analyze what effect the tower would have on planes flying into and out of it.

Scott Seritt, the FAA’s airports district manager, had written to the county about the importance of local regulation:

“As you know, Rowan County is obligated, through your federal grant agreements, to protect the terminal airspace of the Rowan County Airport. This is control that must be exercised at the local and/or state level as the federal government does not have the power to protect that airspace for you.”

“While there are no requirements that you protect the airspace of private-use airports, it is certainly a wise decision. Small airports are the backbone of aviation in the United States…,” he wrote.

Seritt also wrote that “it is important that local communities recognize these assets (airports) and provide the necessary protection both in terms of land usages and height restrictions.”

Based upon this testimony, the Court of Appeals found that the county had acted properly in denying a conditional-use permit for the radio tower.

“Thus, the Board’s decision regarding the CUP was an exercise of precisely the type of local control over private use airports that the FAA specifically endorsed and encouraged, because the FAA did not have the authority to provide this protection,” the court said.

N.C. Court of Appeal decisions are controlling interpretations of state law unless over-ruled by the N.C. Supreme Court. Because the ruling by the three-judge panel of the appeals court was unanimous, the high court is not required to hear the case should DCBI and the Parkers further appeal.

The case is Davidson County Broadcasting, Inc. v. Rowan County Board of Commissioners, (06-1444).

Michael Lowrey is associate editor of Carolina Journal.