Wednesday, December 22, 2010

Airstrip Zoning

The Arkansas Supreme Court recently reviewed a case involving the establishment and maintenance of a private airstrip or airport. The owner built the airstrip on his property for his own personal use but soon thereafter was informed that it was an airport under the terms of the zoning ordinance and illegal at that location. He appealed this decision to the Board of Zoning Appeals and the board reversed, finding that the construction was not an “airport or landing field” as defined by zoning ordinances and that the construction was for “private recreational use.” The neighbors challenged the zoning board's decision, and asked also that the airstrip use be enjoined as a nuisance. Somewhat surprisingly, under Arkansas law, a jury may be empaneled to hear an appeal of this nature (under Arkansas law it is de novo). The jury concluded that the use of the property was not an airport, not for the owner's personal recreational use, and that it was a nuisance; the court enjoined use of the property.

On appeal to the Arkansas Supreme Court, the decision to submit the zoning board appealed to her jury was upheld (based on Arkansas statutory provisions) but submission of the nuisance claim to the jury was reversed. This Supreme Court decision is interesting in that it is probably the reverse of what most states would do; most states, including Tennessee, would not permit a jury trial on issues arising out of a zoning board decision (in most states, the decision is not reviewed de novo, but is rather reviewed on the record created before the zoning Board). Most states, including Tennessee, would allow a jury trial on a nuisance claim.

Recently, Tennessee addressed the facts specific question of airstrip zoning. In Askey v Maury County Board of Zoning Appeals, 2009 WL 837890, the local zoning board concluded that the use of pasture land as an airstrip for private recreational purposes was a violation of the local zoning ordinance. On appeal, the trial court reversed, finding that the zoning ordinance did not preclude the use of the property as a grass airstrip for their private airplane for recreational use. Obviously, and as mentioned above, the trial court heard this case on the record and made its own decision without submitting the matter to a jury.

The Tennessee Court of Appeals affirmed, finding the zoning ordinance to be ambiguous and that the ambiguity must be construed in favor of the property owner.

Two interesting cases involving airstrips: but reaching apparently different results through very different means.

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