Cheyenne Airport Bd. v. Rogers

• Decision Date: 08 October 1985
• Docket Number: No. 84-301,84-301
• Citation: 707 P.2d 717
• Parties: CHEYENNE AIRPORT BOARD and City of Cheyenne, Appellants (Defendants), v. Terry ROGERS and Brenda Rogers, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 717

707 P.2d 717

CHEYENNE AIRPORT BOARD and City of Cheyenne, Appellants (Defendants), v. Terry ROGERS and Brenda Rogers, Appellees (Plaintiffs).

No. 84-301.

Supreme Court of Wyoming.

Oct. 8, 1985.

Rehearing Denied Nov. 1, 1985.

John C. Patton and Royann Fransen of Carmichael, McNiff & Patton, Cheyenne, and R. Walter Connell, Asst. City Atty., Cheyenne, for appellants, oral argument by Patton.

Bernard Q. Phelan, Cheyenne, for appellees.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

CARDINE, Justice.

The question here presented for our determination is whether the City of Cheyenne zoning ordinance providing a height limitation in a noninstrument approach zone to the Cheyenne municipal airport is unconstitutional. The appellees, Terry and Brenda Rogers, own residential property in the noninstrument approach zone. The Rogerses purchased this residential property in 1976, which was two years after passage of the ordinance. The particular height limit on their property, about 26 feet, has not affected the residential usage of the property. It does affect, however, a large cottonwood tree which apparently exceeded the height limit by a few feet on the date the ordinance was passed. By the time of trial the tree had grown to a height of 48 feet and was, therefore, 22 feet above the height limitation.

For reasons that follow, we conclude that the ordinance is constitutional and valid as an exercise of the police power, both in general and as applicable to this case; that no compensable easement was taken; and, hence, that the judgment of the district court should be reversed.

On October 15, 1974, the City of Cheyenne adopted Ordinance No. 1969, §§ 1-15, Code Appendix B, which is entitled The Cheyenne Municipal Airport Zoning Ordinance. The general purpose of the ordinance is to keep the approach zones to the Cheyenne airport runways free from such obstructions as would interfere with the landing and taking off of airplanes.

Of particular importance to this case are the provisions for a noninstrument approach zone in § 3(2) and a height limitation on such zone in § 4(2) of the ordinance. Section 3(2) states:

"A noninstrument approach zone is established at each end of all noninstrument runways on the Cheyenne Municipal Airport for noninstrument landings and takeoffs. The noninstrument approach zone shall have a width of five hundred (500) feet at a distance of two hundred (200) feet beyond each end of the runway, widening thereafter uniformly to a width of two thousand five hundred (2,500) feet at a distance of ten thousand two hundred (10,200) feet beyond each end of the runway, its centerline being the continuation of the centerline of the runway."

Section 4 states:

"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 herein established for such zone. Such height limitations are hereby established for each of the zones in question as follows:

* * *

* * *

"(2) Noninstrument approach zones: One foot in height for each forty (40) feet in horizontal distance beginning at a point two hundred (200) feet from and at the elevation of the end of the noninstrument runway and extending to a point ten thousand two hundred (10,200) feet from the end of the runway."

The Cheyenne airport zoning ordinance, in contrast to many exercises of municipal zoning which are concerned with purely local matters, was passed under the authority and direction of both state and federal legislative bodies and was designed to protect both state and federal interests. To appreciate this blending of powers and authority, we must briefly examine the legal beginnings of the air age.

The federal government initiated the era of commercial air travel in 1926 with the enactment of the Air Commerce Act of 1926, 49 U.S.C. § 171, which in part declared a "public right of freedom of interstate and foreign air navigation" in the navigable airspace of the United States. Subsequent amendments preserved this declaration. 49 U.S.C. § 403 (1938); 49 U.S.C. § 1304 (1958); 49 U.S.C. § 1304 (Supp.1984).

The State of Wyoming made, in 1931, a similar declaration of right of public passage through the navigable airspace. Section 10-4-302, W.S.1977, asserts:

"The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath subject to the right of flight described in W.S. 10-4-303 * * *."

Section 10-4-303, W.S.1977, provides:

"(a) Flight in aircraft over the lands and waters of this state is lawful unless it is:

"(i) At such a low altitude as to interfere with the existing use to which the land or water, or the space over the land or water, is put by the owners;

"(ii) Conducted as to be imminently dangerous to persons or property lawfully on the land or water; or

"(iii) In violation of the air commerce regulations promulgated by the department of transportation of the United States."

Wyoming intended that its declaration and limitations be compatible with those of the federal government. Section 10-4-304, W.S.1977, states:

"W.S. 10-4-101 through 10-4-304 shall be construed as to effectuate its general purpose to make uniform the law of those states which enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of aeronautics."

The air commerce regulations alluded to in §§ 10-4-303(a)(iii) and 10-4-304 have, according to John Wood, manager of the Cheyenne airport, specified that approach zones to airport runways be free from obstacles, but they have not specified the method by which this is to be accomplished by state and local governments. Presumably, exercises of eminent domain, police power and negotiated purchase would be equally satisfactory.

The State of Wyoming, in response to these regulations, has specifically authorized its municipalities to zone the approaches to airport runways. Section 10-5-301, W.S.1977, states:

"(a) The governing body of each incorporated Wyoming municipality and county may regulate and restrict by ordinance the number of stories and size of buildings and the height of other structures constructed upon land within one-half ( 1/2) mile of the boundaries of airports owned or controlled by the town, city or county. They may provide zoning for airspace beyond one-half ( 1/2) mile of the boundaries and within the county, to assure aircraft reasonable safety for visual and instrument approach and departure. The right to zone shall be confined to the geographical limits of the current applicable approach zone established by the federal aviation administration for the particular airport and in no case shall the right to zone extend beyond six (6) nautical miles along the approach path from the end of the instrument runway."

This provision, permissive and not mandatory in nature, was the basis for the municipal exercise of zoning powers by the City of Cheyenne in adopting §§ 3 and 4, supra, of the Cheyenne Municipal Zoning Ordinance in 1974.

The ordinance was initially designed to operate prospectively and it, therefore, preserved rights in nonconforming uses which had vested on the effective date of the ordinance, § 6 providing that

"[t]he regulations prescribed by this ordinance shall not be construed to require the removal, lowering, or other changes or alteration of any structure or tree not conforming to the regulations as of the effective date of this ordinance."

However, such vested rights do not include the right of expansion. The ordinance specifically states that new growth or new additions on vested nonconforming uses are prohibited. Section 7(b) of the ordinance provides, in part, that:

"No permit shall be granted that would allow the establishment of 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 * * *."

This section codifies the general rule that expansion of a legally protected nonconforming use is not allowed. See Wasinger v. Miller, 154 Colo. 61, 388 P.2d 250 (1964).

The impact of these sections is to impose an ongoing duty of trimming on the owners of legally protected nonconforming trees. In this case, however, appellees did not make periodic trimmings of their cottonwood and, as stated, it grew to 48 feet at the time of trial. At that point, the pruning necessary to bring the tree into compliance with the ordinance would, according to David Powell, an arborist, quite likely have killed the tree which in his opinion was worth $2,064.

Irrespective of the silvicultural difficulties of pruning such a mature cottonwood, airport officials notified the Rogerses in July of 1982 that the tree was in violation of its protected nonconforming use status, and that the Rogerses would either have to trim it or the airport board would trim it at the Rogerses' expense.

The Rogerses would not accede to this ultimatum. After an unsuccessful attempt to procure advance damages from the City, they posted their property against unauthorized entrance and maintained their refusal to cut the tree. During this time, the Rogerses made no attempt to use the variance procedure provided for in the ordinance. The City of Cheyenne, therefore, was not afforded an opportunity to consider granting a conditional variance or other relief if appropriate in accordance with § 7(d) of the zoning ordinance which provides, in pertinent part, as follows:

"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 planning commission for a variance from such regulations. Such variances shall be allowed where it is duly found that a literal application...