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Bob Ferguson

AGO 1954 No. 298 -
Attorney General Don Eastvold


Zoning of building heights near an airport is a proper exercise of the police power.

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                                                                 August 13, 1954

Honorable Charles O. Carroll
Prosecuting Attorney of King County
County City Building
Seattle 4, Washington                                                                                                     Cite as:  AGO 53-55 No. 298

Attention:  !ttMr. Jack M. Sawyer,  Deputy Prosecuting Attorney

Dear Sir:

            In a recently acknowledged letter you ask the opinion of this office as to the "constitutionality of planning regulations restricting the height to which buildings could be constructed within a specified area."  The specific ordinance in question is that providing for landing field districts (LF zones) which appears as section 17 of Resolution No. 11373 of the Board of Commissioners of King County.  The purpose of this ordinance is to regulate and restrict the height of structures and objects of natural growth and to otherwise limit the use of property in LF zones in the vicinity of airports.

            From the matter enclosed with your request, it appears that this question arose in connection with the re‑zoning of certain property in "approach zones" to an existing airport.  The contention of unconstitutionality advanced seems to be that "such zoning could deprive those people affected from their property without compensation and without due process of law."

            It is our opinion that such a zoning ordinance is constitutional in itself, but may be unconstitutional in its application to a given factual situation.

             [[Orig. Op. Page 2]]


            A county is given power and authority to regulate buildings within its territorial limits by the provisions of RCW 35.63.080:

            "The council or board may provide for th preparation by its commission and the adoption and enforcement of coordinated plans for the physical development of the municipality.  For this purpose the council or board, in such measure as is deemed reasonably necessary or requisite in the interest of health, safety, morals and the general welfare, upon recommendation by its commission, by ordinance or resolution may regulate and restrict the location and the use of buildings, structures and land for residence, trade, industrial and other purposes; the height, number of stories, size, construction and design of buildings and other structures; the size of yards, courts and other open spaces on the lot or tract; the density of population; the setback of buildings along highways, parks or public water frontages; and the subdivision and development of land.  A council where such ordinances are in effect, may, on the recommendation of its commission provide for the appointment of a board of adjustment, to make, in appropriate cases and subject to appropriate conditions and safeguards established by ordinance, special exceptions in harmony with the general purposes and intent and in accordance with general or specific rules therein contained."

            The power to restrict these regulations to certain zones is given by RCW 35.63.110:

            "For any or all of such purposes the council or board, on recommendation of its commission, may divide the municipality or any portion thereof into districts of such size, shape and area, or may establish such official maps, or development plans  [[Orig. Op. Page 3]] for the whole or any portion of the municipality as may be deemed best suited to carry out the purposes of this chapter and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land."

            The zoning of land by a municipality under statutory authorization such as this is an exercise of the police power.  King County v. Lunn, 32 Wn. (2d) 116, 200 P. (2d) 981.  As such, the ordinance must bear a substantial relation to, or be reasonably necessary for, the health, safety, morals or general welfare of the community.  RCW 35.63.080,supra; State ex rel. Warner v. Hayes Investment Corp., 13 Wn. (2d) 306, 125 P. (2d) 262.

            When a zoning ordinance constitutes a valid exercise of the police power, it will be upheld against the contention that it constitutes a taking of property without compensation and without due process of law.  58 Am.Jur. 951, zoning section 19.  An exercise of the police power does not "take" property in the constitutional sense, but merely places a limitation upon the use and enjoyment of it.  Conger v. Pierce County, 116 Wash. 27, 198 Pac. 377.  If any injury results, it is either negligible or compensated by the general benefits which the police regulations secure for the entire community.  11 Am.Jur. 1004, Constitutional Law, section 266.  Such a non-compensable taking under the police power must be carefully distinguished from an actual taking as by eminent domain, but the question is largely one of degree.  See Mr. Justice Holmes' consideration of the problem in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67 L.Ed. 332, 43 S.Ct. 158, 28 A.L.R. 1321.

            There is now no doubt that the county can reasonably regulate building heights when acting within the police power.  RCW 35.63.080;Bebb v. Jordan, 111 Wash. 73, 189 Pac. 553; 58 Am.Jur. 970, Zoning, section 49; 8 A.L.R. (2d) 963.  The question then becomes whether or not the regulation of building heights for the benefit of an airport is within the police power.

            With the great advent of air transportation, the problem of airport zoning has become increasingly important.  Airports and the Courts, Rhyne, page 164,et seq.; 6 Am.Jur. 61, Aviation section 90; U. of Cinc. L.Rev. 17:327-42, November 1948; Journal of Air Law 10:424-30, 1939; Texas Law Review  [[Orig. Op. Page 4]] 22-23:57-66, December 1944.  Few cases seem to have brought the problem before the courts.  In those cases, we find that where airport zoning provisions were challenged they have often been held invalid.  Yara Engineering Corp. v. City of Newark, 132 N.J.L. 370, 40 A. (2d) 559;Rice v. City of Newark, 132 N.J.L. 387, 40 A. (2d) 561;Mutual Chemical Co. v. Mayor and City Council of Baltimore, 33 Fed. Supp. 881 (D.C. Md. 1940).

            The Attorney General of Michigan also has held that a regulation creating a clear approach zone at an angle whose tangent is 1 to 20 constitutes an invasion of property rights.

            This line of cases seems to be distinguishable from the general problem, however.  In each case, the zoning regulations were such as to constitute an actual taking of property rather than a mere regulation.  These cases should be compared with Antonik v. Chamberlain, 78 N.E. (2d) 752, wherein it was held that the United States had reserved to itself the right "when necessary to take‑off or landing" to grant to aviators, licenses reasonably to use the air space below the "navigable air space."  (Defined by 49 U.S.C.A. section 180,et seq.)

            It is our opinion that the limitations of building heights in and about a landing field for the protection of air travel is within the police power granted to municipalities to provide for and maintain safety.  However, careful distinction must be drawn under the Pennsylvania Coal case, supra, and the zoning ordinance must be such as to provide only regulation.  If the height limit is so low that there is an actual taking of property, then the regulation cannot be sustained; but rather, the rights would have to be acquired by purchase or condemnation.  What this limiting height may be before it constitutes a taking is a question of fact to be determined in each case in view of all circumstances.  The 35 foot limit set by this ordinance would seem to be reasonable, at least in a residential area, under the decision in U.S. v. 357.25 Acres of Land in Calcasiew Parish, 55 Fed. Supp. 461, (La. 1944).

Very truly yours,

Attorney General

Assistant Attorney General