Petition for Writ of Certiorari — Cox v. City of Wichita Falls

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No. o1-_BDIe62 JuL 0 9 2001

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IN THE

Supreme Court of the United States

OCTOBER TERM, 2001

CHESTER COX, JR.., et al.,

Petitioners,

CITY OF WICHITA FALLS, TEXAS, A Texas

Incorporated Municipality, UNITED STATES OF AMERICA;

et al.,

Respondents. |

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Steven Barshov

Attorney for Petitioners

Stadtmauer Bailkin LLP

850 Third Avenue

New York, N.Y. 10022

(212) 822-2247

SNL RNS 0 SO yr

congo

QUESTIONS PRESENTED FOR REVIEW

1. Does a municipal zoning ordinance that is not

comprehensive and is not adopted in accordance with a

comprehensive plan violate the due process and equal protection

clauses of the United States Constitution?

2. Is the United States liable under 42 U.S.C. § 1983 if

United States military air installation personnel and a city

collaborate, under color of state law, to impose zoning on private

property that violates federally protected constitutional rights?

LIST OF PARTIES

The following are the parties to the proceedings before the Fifth

Circuit Court of Appeals, as well as the parties to the proceedings

before the Supreme Court:

Petitioners: Chester Cox, Jr.; D.B. Clark; Pauline Clark; Steve

Murphy; Robin Murphy; Paul Brown; Agnes Brown; Eddie Long;

William Bradley; Dorothy Bradley; Melvin Masters; Glynn C.

Weeks; Madeline A. Weeks; Billie Wolfe; Robbie Wolfe; Edwin L.

Smith; Wanda Smith; Everett Davis; Herb Sleeper; Joanie Sleeper;

Kenneth Davis; Vona Davis; Roy L. Baker; Sammie J. Baker;

David Homyk; Marsha Homyk; Jo Ann Gibson; Burt Stewart;

Raymond M. Heinert; Elida Heinert; James Prentiss; Vinnie

Prentiss; Billy Davis; Sylvia Davis; Francis Raines; Joe Davis; J.A.

Hill; Joe Mitchell; Lois Mitchell; Dan Humphreys; Marilyn

Humphreys; Joe Wilson; Bobby Mannen; R.E. Marlow, Jr.; Susan

Woods; Larry Woods; Gad Garland; Kathleen Murphy; Truman J.

Stephens; Valine Stephens; Michael Owen; Emest Davis; Mary

Davis; and Larry Rutledge.

Respondents: City of Wichita Falls, Texas; United States of

America; United States Department of Defense; William H. Perry,

as Secretary of the Department of Defense; United States

Department of the Air force; Sheila Widnall, as Secretary of the

Department of the Air Force; Sheppard Air Force Base; and

General Michael Zettler, as Base Commander of Sheppard Air

Force Base.

re er

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........... i

ge 8 a ee re ee il

REPRE CUTEUPIOEATD ons ccc ccccctscccacccess iv

RE ee ree l

STATEMENT OF JURISDICTION .................. 2

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS, AND ORDINANCE INVOLVED ..... 2

DEAREOTE CW REE CAGE 2... ccc ccscccncccccces 3

REASONS FOR GRANTING THE WRIT ............. 9

SINCE THE FIFTH CIRCUIT’S DECISION

CONFLICTS WITH THE RELEVANT DECISIONS

OF THIS COURT, THE EIGHTH CIRCUIT COURT

OF APPEALS, AND VARIOUS STATE COURTS OF

LAST RESORT; AND SINCE IMPORTANT

FEDERAL QUESTIONS ARE PRESENTED THAT

HAVE NOT BEEN, BUT SHOULD BE, SETTLED BY

THIS COURT; THE PETITION FOR WRIT OF

CERTIORARI SHOULD BE GRANTED ............ 9

A. The Comprehensive Zoning Question .............. 9

1. Conflict With Relevant

SO GE Fee AS on ccc tc dncdcccenasa 10

2. Conflict With The Eighth Circuit ........... 12

3. Conflict With State Courts Of Last Resort .... 13

4. An Important Question Of Federal Law

DR sheds ahwines sedans suet eueees 16

5. The Question Is Likely To Recur ........... 17

B. Liability Of The United States

Under 42 U.S.C. § 1983 . eee eee eee rere 18

CME wo 6 Scenes che eebads hiatal eeiaaan 21

TABLE OF AUTHORITIES

Page

CASES:

Agins v. City of Tiburon, 447 U.S. 255 (1980) ......... 17

Amcon Corp. v. City of Eagan,

348 N.W.2d 66 (Minn. 1984) ....... ea gui ani sala 13

Central Bank and Trust Co. v. City of Miami Beach,

392 F.2d 549 (Sth Cir. 1968) ................. ae

City of Aurora v. Burns, 319 Ill. 84,

AD TER. FOR ho ko ho sea cee ve idiseeass 10, 13

City of Eastlake v. Forest City Enter., Inc.,

SIGUE, CORO ok. io on hv sda Rideee sc EEA 11

City of Miamj Beach v. Manilow, 226 So.2d 805

A: Fak BOD ova be cic Red eek eet ean ieee 11

Committee for Sensible Land Use v. Garfield Township,

124 Mich. App. 559, 335 N.W.2d 216 (Ct.App. 1983) . 11

Consolidated Rock Products Co. v. City of

Los Angeles, 57 Cal.2d 515, 370 P.2d 342 (1962) ..... 10

Cowart v. City of Ocala, 474 F.Supp. 774

ase Se err ee rere er or rr rT 10

De-Tom Enter., Inc. v. United States,

552 F.2d 337 (Ct.Cl. 1977) .....-- 20sec eee ees 19, 20

East Lands, Inc. v. Floyd County, 244 Ga. 761,

BS DE DOEPUED + cv vcetsdocecseeedseunseeusas 16

Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926) .........cc cee e cues 10, 11, 12, 13

Ewing v. City of Carmel-By-The-Sea, 234 Cal. App.3d

1579, 286 Cal. Rptr. 382 (Ct. App. 6th Dist. 1992) .... 10

Gordie Boucher Lincoln-Mercury Madison, Inc.

v. City of Madison Plan Commission,

178 Wis.2d 74, 503 N.W.2d 265 (Ct.App. 1993)... 13-14

Gorieb v. Fox, 274 U.S. 603 (1927) .............005. 10

Hadley v. Harold Realty Co., 97 R.I. 403,

50S ABE HC 4 6.0 ck advise cieseeeaee 13

Hageman v. Board of Trustees of Wayne Township,

20 Ohio App.2d 12, 252 N.E.2d 507 (Ct.App. 1969) ... 19

Hewitt v. County Commissioners of Baltimore County,

220 Md. 58, 63, 151 A.2d 144, 153 (1959) .......... 16

Lakewood, Ohio Congregation of Jehovah's Witnesses,

Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983) . 10

Lucas v. South Carolina Coastal Commission,

SOR URE. STIG 5 bo ccassckicwdacsecteacccens 17

Marshall v. Salt Lake City, 105 Utah 111,

BOE FBS FOOCRTED 2.0 nec ecicvcewesdedeccsaccecs 11

Vii

Moore v. City of East Cleveland, 431 U.S. 494 (1977) ... 11

Payne v. Borkat, 244 Ga. 615, 617,

ee I ee cen Cl 11

Penn Central Transp. Co. v. New York City,

es HT ENEE itn sends de cenen ends enek dunce 12

Scott v. Champion Bldg. Co., 28 S.W.2d 178

CE sccvcccaveheeendseassenoen 11

Snell v. Curry County, (D.N.M. 1989), No. 85-788-M ... 18

State ex rel. Carter v. Harper, 182 Wis. 148,

Se ED <5 b chehadciweestccuveeevvens 13

State ex rel. Cobun v. Town of Star City, 157 W.Va. 86,

OS Ere ener ere 11

State ex rel. Henry v. City of Miami, 117 Fla. 594,

eee seca oe bus sou bie 13

State ex rel. Synod of Ohio of United Lutheran

Church of America v. Joseph, 139 Ohio St. 229,

BP RM OPER Ko ccncandccdacsasdssocccnce 11

Udell v. Hass, 21 N.Y.2d 463, 288 N.Y.S.2d 888,

SD CUNT CHIU vac cancececacecseseesss 11, 16

Welch v. Paicos, 66 F.Supp.2d 138 (D. Mass. 1999)....: 10

Women's Kansas City St. Andrew Soc. v. Kansas City,

eR ree 12-13

Viii

FEDERAL STATUTES:

Ps ED canna dkeaeadéec> ceubasacaeaden 2

DGGE BET 06a nnensdsdsrecseaseans 2, 8, 9, 18, 21

STATE STATUTES:

Texas Local Govt. Code § 211.004 ................. 2,9

Texas Local Government Code §§ 241.001 - 241.020 .... 2

Texas Local Govt. Code § 241.015 ...............005. 8

REGULATIONS:

32 C.F.R. Part 256 ...... eT PPTL Te EOTELEerieTe passim

I eras eas cate 4

Ste tS Fr -. s ARERYEEEXERESEREEEEEEEEERER ETE 4,5

32 CFR. § 2565. Fit ate a aie Gee ee 6

eS Se rent neh yon nist 4

SI BI 5s is addi 4

ORDINANCES:

Wichita Falls Ordinance No. 155-94 ............. passim

I Sr ees ee dee beGceca lua cs 6,7

OTHER: ;

A Zoning Primer (1926), United States Department of

Commerce Advisory Committee on Zoning .......... 15

Bassett, Edward M.., “Constitutional Limitations on

City Planning Powers” (1917) ..............00005. 15

Bettman, Alfred, “Constitutionality of Zoning,” 37 Harv.L.Rev.

ea rk bes Wi Aha e's es ee 15

LAND USE PLANNING AND CONTROL LAW,

Juergensmeyer and Roberts (West Pub. 1998) ......... 15

Map of Noise Zones and Accident Potential Zones

for Sheppard Air Force Base .................0005. 5

Sheppard Air Force Base Map ....................... 7

Standard Zoning Enabling Act, United States

Department of Commerce ..................... 14-16

ZONING AND LAND USE CONTROLS

(P. Rohan and E. Kelly, eds., 1997) ................ 15

No. 01-___

INTHE _

Supreme Court of the United States

OCTOBER TERM, 2001

CHESTER COX, JR., et al.,

Petitioners,

v. |

CITY OF WICHITA FALLS, TEXAS, A Texas

Incorporated Municipality; UNITED STATES OF AMERICA;

et all.,

Respondents.

——SSESIIII~Iy~_>IlIlI III I i SESS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

III] ————————————————————————TTT—————

The Petitioners, Chester Cox, Jr., et al., respectfully pray that

a writ of certiorari issue to review the April 9, 2001 judgment and

opinion of the United States Court of Appeals for the Fifth Circuit

in the above-captioned action.

OPINIONS BELOW

The opinion and judgment of the United States Court of

Appeals for the Fifth Circuit is not reported and is reprinted in the

—

appendix hereto, infra at A-1. The Memorandum Opinion and

Order of the United States District Court for the Northern District

of Texas, Wichita Falls Division, dated September 1, 1999, granting

summary judgment to Defendants (“Mem. Op.”’), is not reported

and is reprinted at A-2, infra. The Judgment of the District Court

dismissing Petitioners’ complaint, dated September 1, 1999, is not

reported and is reprinted at A-22, infra. The District Court’s

Order denying Plaintiff's motion for leave to amend and other

related relief, dated July 14, 2000, is not reported and is reprinted

at A-23, infra. i

STATEMENT OF JURISDICTION

Petitioners seek review from the Opinion and Judgment of the

United States Court of Appeals for the Fifth Circuit of April 9,

2001. The Supreme Court has jurisdiction to review cases from the

United States Courts of Appeals pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS, AND ORDINANCE INVOLVED

The Fifth Amendment to the United States Constitution provides

in pertinent part that: “No person shail. . .be deprived of life, liberty,

or property, without due process of law... .”

Section 1 of the Fourteenth Amendment to the United States

Constitution provides in pertinent part that: “No State shall. . .

deprive any person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”

42 U.S.C. § 1983 provides in pertinent part that:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State. .., subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress. . . .

The United States Department of Defense (“DoD”) Air

Installation Compatible Use Zone Regulations, 32 C.F.R. Part 256,

etseq., (the “AICUZ Regulations”), are reprinted at A-24, infra.

City of Wichita Falls Ordinance No. 155-94 (the “Ordinance”) is

reprinted at A-46, infra. Texas Local Govt. Code § 211.004, is

reprinted at A-74, infra. Texas Local Govt. Code §§ 241.001

through 241.020 are reprinted at A-75, infra.

STATEMENT OF THE CASE

The facts of this case are undisputed. Petitioners are property

owners, including ranchers, farmers and homeowners, whose lands

are located: (1)in a predominantly rural portion of Wichita County,

Texas (the “County”); (2) outside the boundaries of the City of

Wichita Falls (the “City”); and (3) north of Sheppard Air Force

Base (“Sheppard” or the “Base’”’).

The County has no zoning. Thus, aside from the City’s

extraterritorial zoning Ordinance, whose constitutionality is

challenged herein, Petitioners’ lands have never been zoned.

In the early 1990's, Sheppard added a new runway directing

new flights over Petitioners’ lands, substantially extended an existing

runway toward Petitioners’ lands, and substantially increased the

number of flights and intensity of air installation activities in support

of its new mission to train NATO pilots (collectively, the “Sheppard

Expansion”). The Sheppard Expansion required the air installation

to comply with the AICUZ Regulations.

In the AICUZ Regulations, DoD: (1) established a uniform,

extensive, and detailed list of land uses that it determined should not

be undertaken on private property in proximity to air installations

(32 C.F.R. § 256.8, infra at A-37 to A-41); and (2) mandated that

every United States military air installation attempt to cause local

government zoning to be enacted preventing such uses of private

property (32 C.F.R. § 256.4(b)(2)(ii)(B), infra at A-30).

The AICUZ Regulations contemplate two basic types of

districts: Accident Potential Zones (“APZs”) and Noise Zones

(collectively referred to as “compatible use zones” or “CUZs”).

See 32 C.F.R. § 256.3(c). APZs are lands that are past each end

of a runway and are subdivided into Clear Zones and Accident

Potential Zones I and II (“APZ I’ and “APZ IT’). See the

schematic drawing showing the relative position and size of each

APZ in 32 C.F.R. § 256.7, infra at A-36.'

Under the AICUZ program, there are a minimum of four Noise

Zones, each corresponding to a particular decibel (“dB”) level of

noise on surrounding lands arising from air installation activities: 65-

70dB, 70-75dB, 75-80dB, and 80+dB. Noise Zones are irregular

1. The Clear Zone begins at the ends of each runway and, for the major

runways at Sheppard, measures 3,000 feet in length and width. APZ I begins

at the end of each clear zone and, for major runways, measures 5,000 feet in

length and 3,000 feet in width. APZ II begins at the end of APZ I and, for

major runways, measures 7,000 feet in length and 3,000 feet in width. Jd.

ee eee Se ee re eT

in shape and follow noise decibel contour lines. See the Map of

Noise Zones and APZs for Sheppard, infra at A-87. As shown

thereon, Noise Zones and APZs are not mutually exclusive and

private property can be in both. Jd. For example, many of

Petitioners’ lands are in either APZ I or APZ IL, as well as in one of

the two highest Noise Zones.

In addition to affirmatively requiring each air installation to seek

implementation of the AICUZ program via local zoning, the

AICUZ Regulations also impose strict limits on the private property

rights that air installations can acquire via eminent domain:

(A) The first priority is the acquisition in fee and/or

appropriate restrictive easements of lands within the

clear zones whenever practicable.

(B) Outside the clear-zone, program for the

acquisition of interests, first in Accident Potential

Zones and secondly in high noise areas only when

all possibilities of achieving compatible use

zoning, or similar protection, have been

exhausted and the operational integrity of the air

installation is manifestly threatened. . . .

32 C.F.R. § 256.4(b)(2)(ii) (emphasis added).

Thus, outside the Clear Zone, unless a use of property

manifestly threatens the operational integrity of the air installation,

private property rights will not be acquired. However, the AICUZ

Regulations require each military air installation to seek local zoning

to implement AICUZ, including to prohibit lawful uses which do not

and will not manifestly threaten the operational integrity of the air

installation and, thus, would never be acquired via eminent domain.

To identify and communicate the precise compatible use zoning

to be sought by the United States, each air installation is required to

promulgate an AICUZ Study. See 32 C.F.R. § 256.5. The

AICUZ Study must be consistent with the AICUZ Regulations. Jd.

Accordingly, in May, 1992, Sheppard promulgated an AICUZ

Study in connection with the Sheppard Expansion in which it called

for implementation of the DoD AICUZ program via enactment of

zoning by the City. The AICUZ Study was consistent with the

AICUZ Regulations and included: 1) maps delineating the proposed

location of the APZs and all Noise Zones; 2) the uses proposed to

be prohibited and allowed in each zone, including prohibition of all

residential use in APZ I and the 75 and 80 dB zones; 3) the noise

attenuation measures proposed to be required of property owners

in the Noise Zones; 4) proposed density limits; and 5) proposed

height and other limits on construction.

In 1994, at the request of Sheppard (and partially motivated by

the fear of base closure), the City enacted the Ordinance

implementing the zoning exactly as proposed in Sheppard’s AICUZ

Study. Indeed, the Ordinance is a virtual verbatim repetition of the

Sheppard AICUZ Study. For example:

1. The Ordinance establishes zoning districts by incorporating

byreference the zone boundary maps from the AICUZ Study. See

Ordinance § 6430(A), infra at A-52 (regarding APZ and Clear

Zone boundaries); and Ordinance § 6435(A), infra at A-53

(regarding Noise Zone boundaries). See the map, infra at A-87.

2. The Ordinance delineates permitted and prohibited uses

(including the proscription against residential use in APZ L, 75 dB

and 80 dB zones) by incorporating by reference the list of

compatible and prohibited uses for each zone as set forth in the

Sheppard AICUZ Study. See Ordinance § 6430(B), infra at A-52

(regarding APZs); and Ordinance § 6435(B), infra at A-53

(regarding Noise Zones).”

The City has expressly admitted in its Answer and the United

States has not denied that:

(1) the Ordinance zones only the lands identified in the AICUZ

Study and zones solely to implement the AICUZ Study;

(2) the City conducted no independent studies prior to adopting

the Ordinance; and

(3) the Ordinance zoned a tiny fraction of the unincorporated

portion of the County, leaving the vast majority of the County

unzoned.

Although Sheppard itself is within the Ordinance’s Noise Zones,

Sheppard and the United States have not waived their immunity to

the Ordinance. Sheppard is essentially a small city and its uses

would violate numerous provisions of the Ordinance if undertaken

on private property.’ Thus, Sheppard and the United States remain

immune from the Ordinance’s burdens, while such burdens fall

solely on Petitioners and other private property owners. The

Ordinance creates no reciprocity; the United States and Sheppard

benefit, while Petitioners are burdened.

2. The Ordinance’s Land Use Compatibility Table is virtually identical to the

Land Use Compatibility Table in the AICUZ Study; the density limits are

identical; the noise attenuation measures required are identical; many of the

3. See Sheppard AFB Map, infra at A-89 and A-90.

The Ordinance is not comprehensive zoning and was not

enacted in accordance with a comprehensive plan, as the

Ordinance: 1) zones for the sole purpose of implementing the

AICUZ Study; 2) does not create reciprocal benefits and burdens;

and 3) zones only a tiny fraction of the unincorporated area of the

County. The lack of comprehensiveness is not merely a position

advocated by Petitioners. At all stages of this litigation the City has

expressly and formally admitted, and the United States has not

denied, that the Ordinance is not comprehensive zoning and that it

was not adopted in accordance with a comprehensive plan.

Petitioners commenced this action alleging, inter alia, that: 1)

the Ordinance violated the due process and equal protection clauses

of the United States Constitution because it is not comprehensive

zoning and was not adopted in accordance with a comprehensive

plan; and 2) the City and the United States and/or its personnel are

“co-zoners” and jointly liable under 42 U.S.C. § 1983 for the

deprivation of Petitioners’ federally protected constitutional rights

under color of state law.

The City and United States moved for summary judgment

which was granted by the District Court. The District Court

acknowledged that the Ordinance was not comprehensive, but held

that the applicable Texas enabling legislation, particularly Texas

Local Govt. Code § 241.015 (infra at A-82), did not require that

the Ordinance be comprehensive and adopted in accordance with

a comprehensive plan. (Mem. Op., infra at A-8 to A-10.)

In essence, the District Court disposed of Petitioners’ federal

constitutional comprehensive plan claim on state statutory

grounds, by concluding that zoning need only be comprehensive and

in accordance with a comprehensive plan if so required in the

applicable state enabling legislation. (Jd.) Conversely, by its silence,

the District Court rejected Petitioners’ claim that the United States

Constitution requires zoning to be comprehensive.‘ (/d.) Finding

no constitutional violation, the Court dismissed Petitioners’ claims

under 42 U.S.C. § 1983. (Mem. Op., infra at A-14 to A-16.)

Petitioners appealed to the United States Court of Appeals for the

Fifth Circuit. On April 9, 2001, the Court of Appeals affirmed

without opinion (infra at A-1.)

REASONS FOR GRANTING THE WRIT

SINCE THE FIFTH CIRCUIT’S DECISION CONFLICTS

WITH THE RELEVANT DECISIONS OF THIS COURT,

THE EIGHTH CIRCUIT COURT OF APPEALS, AND

VARIOUS STATE COURTS OF LAST RESORT; AND

SINCE IMPORTANT FEDERAL QUESTIONS ARE

PRESENTED THAT HAVE NOT BEEN, BUT SHOULD

BE, SETTLED BY THIS COURT; THE PETITION FOR

WRIT OF CERTIORARI SHOULD BE GRANTED

A. The Comprehensive Zoning Question

This petition invites the Court to address whether Petitioners’

federally protected constitutional rights to due process and equal

4. In part, it appeared that the District Court declined to reach Petitioners’

federal constitutional comprehensive plan claim because Petitioners had not

challenged the constitutionality of the Texas Local Government Code

enabling legislation. Petitioners had not originally challenged the

constitutionality of the state enabling law because Petitioners argued that

Texas Local Govt. Code § 211.004 required all zoning to be in accordance

with a comprehensive plan. (A- 9, infra.) When the District Court held to

the contrary, Petitioners timely sought leave to amend to challenge the

constitutionality of the state enabling law and thereby raise the identical

constitutional comprehensive plan claims. Petitioners’ motion was denied,

without opinion. See Order, infra, at A-23.

protection were violated by imposition of zoning on their lands that

is not comprehensive.

1. Conflict With Rel Decisi ‘This C

In the landmark case of Euclid v. Ambler Realty Co., 272

U.S. 365 (1926), this Court specifically upheld the constitutionality

of comprehensive zoning and the use of such zoning to prohibit

otherwise lawful uses of land from entire districts or zones.* The

Court characterized the Euclid zoning ordinance as

“comprehensive” and relied on numerous cases in which the

constitutionality of comprehensive zoning had been upheld by state

courts of last resort.®

Decisions subsequent to Euclid confirm that numerous federal’

and state courts® cite Euclid as sustaining the constitutionality of

5. See Gorieb v. Fox, 274 U.S. 603, 607 (1927) (reconfirming that Euclid

sustained the constitutionality of “comprehensive zoning laws and

ordinances”).

6. See, e.g., City of Aurora v. Burns, 319 Ill. 84, 149 N_E. 784, 788 (1925)

(Illinois Supreme Court holding that: “Zoning necessarily involves a

consideration of the community as a whole and a comprehensive view of its

needs”).

7. Central Bank and Trust Co. v. City of Miami Beach, 392 F.2d 549, 550

(Sth Cir. 1968); Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc.

v. City of Lakewood, 699 F.2d 303, 307 (6th Cir. 1983), cert. den., 464 U.S. 815

(1983); Welch v. Paicos, 66 F. Supp.2d 138, 164 (D. Mass. 1999); Cowart v.

City of Ocala, 474 F Supp. 774, 780 (M.D. Fla. 1979).

8. See Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d

515, 521,370 P.2d 342, 346 (1962) (California Supreme Court holding that after

the Euclid decision “comprehensive zoning had taken its place as a

constitutionally recognized part of our legal and political system); app.

dismissed 371 U.S. 36; por} “orden City of Carmel-By-The-Sea, 234 Cal.

comprehensive zoning.

Similarly, Justice Stevens wrote in a concurring opinion in

Moore v. City of East Cleveland, 431 U.S. 494 (1977), that

Euclid sustained the constitutionality of a city using “its police

power, not just to abate a specific use of property which proved

offensive, but also to create and implement a comprehensive plan

for the use of land in the community...”. Jd. at 513-14.

Justices Stevens and Brennan, dissenting in City of Eastlake v.

Forest City Enter., Inc., 426 U.S. 668 (1976), confirmed that ?

zoning must be comprehensive to be rational by including in their

dissent the following quote from the New York Court of Appeals

decision in Udell v. Hass, 21 N.Y.2d 463, 469, 288 N.Y.S.2d

888, 893-894, 235 N.E.2d 897, 900-901 (1968):

[T]he comprehensive plan is the essence of zoning. Without

it, there can be no rational allocation of land use.

Eastlake, 426 U.S. at 690, n. 12.

App.3d 1579, 1587, 286 Cal. Rptr. 382, 385 (Ct. App. 6th Dist. 1992)

(confirming that the Euclid Court “confronted for the first time a

comprehensive zoning scheme...” and upheld its constitutionality after it

“examined the reasons for comprehensive zoning”).

See also Scott v. Champion Bldg. Co., 28 S.W.2d 178, 181

(Tx.Ct.Civ.App. 1930); Committee for Sensible Land Use v. Garfield

Township, 124 Mich. App. 559, 566, 335 N.W.2d 216, 219 (Ct.App. 1983);

Payne v. Borkat, 244 Ga. 615, 617, 261 S.E.2d 393, 394 (1979); State ex rel.

Cobun v. Town of Star City, 157 W.Va. 86, 89, 197 S.E.2d 102, 104 (1973);

City of Miami Beach v. Manilow, 226 So.2d 805, 806 (S.Ct. Fla. 1969);

Marshall v. Salt Lake City, 105 Utah 111, 141 P.2d 704, 709 (1943); and State

ex rel. Synod of Ohio of United Lutheran Church of America v. Joseph, 139

Ohio St. 229, 39 N.E.2d 515, 521 (1942).

Soon after Eastlake and Moore, a majority of the Court’s

justices, in dicta, acknowledged the fundamental importance of

comprehensiveness in relation to zoning. In his dissent in Penn

Central Transp. Co. v. City of New York, 438 U.S. 104 (1978),

now Chief Justice Rehnquist (joined by then Chief Justice Burger

and Justice Stevens) quoted as follows from the New York Court

of Appeals decision then on appeal: “Zoning restrictions operate to

advance a community plan for the common good. Each property

owner in the zone is both benefitted and restricted. ..”. Jd. at 139.

The dissenters in Penn Central emphasized that reciprocity of

benefits and burdens -- one of the basic elements of

comprehensiveness -- is essential to zoning and was lacking in the

New York City Landmarks Law. Jd. at 139-140. The Penn

Central majority acknowledged the importance of

comprehensiveness in respect of zoning, but concluded that the

New York City Landmarks Law was comprehensive. Jd. at 132.

Plainly, a significant number of Justices have opined, post-

Euclid, that comprehensiveness is either the essence of, or critically

important to, constitutionally valid zoning. A fair collective reading

of Euclid, the aforementioned opinions of the Justices of this Court,

and the opinions from other federal and state courts citing to and

relying on Euclid, appears to sustain the proposition that this Court

requires that zoning be comprehensive to be constitutional. Ifso,

then the Fifth Circuit’s affirmation of the District Court’s decision

holding zoning need not be comprehensive or in accordance with a

comprehensive plan unless mandated by the state legislature,

conflicts with the relevant decisions of this Court, especially Euclid.

2. Conflict With The Eighth Circui

The Fifth Circuit’s decision also conflicts with the Eighth

Circuit’s decision in Women’s Kansas City St. Andrew Soc. v.

Kansas City, 58 F.2d 593, 604 (8th Cir. 1932). There, relying on

Euclid and Aurora, the Eighth Circuit expressly held that zoning

which excludes land uses from residential districts can be sustained

only ifthe exclusions are in accordance with a comprehensive plan.

3. Conflict With State Courts t Resort

The Fifth Circuit’s decision conflicts with decisions by state

courts of last resort that zoning must be comprehensive and in

accordance with a comprehensive plan to be sustained under the

United States Constitution. For example, in Amcon Corp. v. City

of Eagan, 348 N.W.2d 66 (Minn. 1984), the Minnesota Supreme

Court held as follows:

The essence of constitutional zoning with no due process or

equal protection problems is generally recognized to be

demonstrated by the existence of a plan which uniformly,

without discrimination and without unreasonable restrictions,

promotes the general welfare.

Id. at 74. See also Hadley v. Harold Realty Co., 97 R.1. 403,

409, 198 A.2d 149, 152 (1964) (Supreme Court of Rhode Island

holding that zoning in accordance with a comprehensive plan is a

“constitutional necessity”); and State ex rel. Carter v. Harper, 182

Wis. 148, 196 N.W. 451 (1923).°

The Fifth Circuit decision is also in conflict with Gordie

9. See also State ex rel. Henry v. City of Miami, 117 Fla. 594, 600, 158 So. 82,

84 (1932) (Concurring Opinion of Chief Justice Davis stating that “in order

to be constitutional under the due process clause of the Fourteenth

Amendment to the Federal Constitution, zoning ordinances must be passed

in aid of some ‘plan’ that is general and comprehensive in character. . .”).

Boucher Lincoln-Mercury Madison, Inc. v. City of Madison

Plan Commission, 178 Wis.2d 74, 503 N.W.2d 265 (Ct.App.

1993), review denied, 508 N.W.2d 421 (1993). There, the

Wisconsin Court of Appeals held that the statutory

comprehensiveness requirement was enacted to prevent localities

from zoning in a manner that would violate the Constitution:

To insure that. . . “reciprocity of benefits” will mure to the

property owner, the legislature has mandated that “[zoning]

regulation [in a city] shall be made in accordance with the

comprehensive plan.”. . . /t is not a legislative accident

that the city master plan must contain “a

comprehensive zoning plan.”....

The procedures by which cities and counties impose

zoning controls on the use of land satisfy constitutional

requirements. First, in each case the zoning ordinance

must be comprehensive.

Id., 178 Wis.2d at 94-95; 503 N.W.2d at 272 (emphasis added).

The source of the statutory requirement that zoning be

comprehensive is the Standard Zoning Enabling Act (“SZEA”’)

promulgated by the Department of Commerce Advisory Committee

on Zoning.’° First issued in 1924, Section 3 of the SZEA provides

10. The Advisory Committee, appointed by then Commerce Secretary

Herbert Hoover, was a blue ribbon panel, members of which included Edward

M. Bassett, Esq. (the principal drafter of the New York City zoning

ordinance; generally recognized as the first comprehensive zoning ordinance

in the nation); Alfred Bettman, Esq. (who submitted the amicus curiae

“Brandeis Brief” on behalf cf the National Conference of City Planning in

Euclid, that was a significant catalyst for this Court’s upholding of

comprehensive zoning on rehearing); and Frederick Law Olmsted (the

renowned landscape architect who designed New York’s Central Park).

that municipal zoning regulations “‘shall be made in accordance with

a comprehensive plan. . .”.'' The SZEA was extraordinarily

successful and became the basis for state zoning enabling laws in

every state.!?

Messrs. Bettman and Bassett, the principal legal drafters of the

SZEA, were well aware that if zoning was not enacted

comprehensively, it would stand little chance of being sustained as

constitutional. In a pamphlet revised and issued prior to Euclid in

1926, entitled “A Zoning Primer,” the Advisory Committee stated

as follows: “When a zoning law is properly drawn there is no doubt

that the courts will supportit. . .. In fact, the courts have approved

zoning whenever it was done sensibly and comprehensively.”.!

11. The full text of the SZEA is reprinted in 8 ZONING AND LAND USE

CONTROLS § 53.01[1] (P. Rohan and E. Kelly, eds., 1997).

12. LAND USE PLANNING AND CONTROL LAW, Juergensmeyer and

Roberts (West Pub. 1998) § 3.6, p. 46.

13. In their individual writings Messrs. Bettman and Bassett stressed the

importance of comprehensiveness. See Bettman, Alfred, “Constitutionality

of Zoning,” 37 Harv.L.Rev. 834, 844-45 (1923), where Mr. Bettman wrote:

The comprehensive plan, however, is not a mere arbitrary

selection of districts, . . . but is the whole community’s

plan, motivated by the desire for the promotion of the best

practicable districting of the whole territory for the benefit _

of all. In short, to adopt a colloquialism of the day, it is

the comprehensiveness which puts the “reason” into

“reasonableness.” (Emphasis added).

See also Bassett, Edward M., “Constitutional Limitations on City

Planning Powers” (a paper prepared on behalf of the N.Y.C. Committee on

the City Plan and delivered at the National Conference on City Planning held

at Kansas City, Mo., May 7-9, 1917) at 10, where Mr. Bassett stated that:

“The framing of the [zoning] ordinance should follow careful investigations

so that it will be reasonable, comprehensive and, not discriminatory.”

Thus, the comprehensive plan requirement was included in the

SZEA to codify applicable federal due process and equal protection

constitutional requirements and thereby assure that municipal zoning

did not violate federally protected constitutional rights. The decision

of the Fifth Circuit is in conflict with the decisions of the state courts

of last resort that have evaluated the SZEA’s comprehensive plan

requirement and held, that in the absence of comprehensiveness,

zoning is arbitrary, irrational, unreasonable, and, a fortiorari,

unconstitutional.

For example, the New York Court of Appeals, after noting that

the comprehensive plan requirement has its genesis in the SZEA,

stated that comprehensiveness is necessary to assure that zoning is

“enacted for the benefit of the community as whole;” and that the

comprehensive plan requirement “is not a mere technicality.” Thus,

the Court of Appeals held that zoning in accordance with a

comprehensive plan “is the essence of zoning” and “[w]ithout it

there can be no rational allocation of land use.” Udell, supra, 21

N.Y.2d at 469; 288 N.Y.S.2d at 893; 235 N.E.2d at 900-901."

4. An Important Question of Federal Law Is Presented

There is no more fundamental constitutional question in relation

to the promulgation of zoning than whether due process and equal

protection require comprehensiveness. The issue presented is as

fundamental to the first prong of the two part test for constitutionality

14. See also East Lands, Inc. v. Floyd County, 244 Ga. 761, 262 S.E.2d 51,

52, n.2 (1979) (noting that the statutory comprehensive plan requirement “is

intended to avoid arbitrary, unreasonable or discriminatory use of zoning

power”); and Hewitt v. County Commissioners of Baltimore County, 220

Md. 58, 63, 151 A.2d 144, 153 (1959) (noting the tendency to “equate

comprehensive plan requirements with constitutional requirements”).

enunciated in Agins v. City of Tiburon, 447 U.S. 255 (1980), as

a categorical taking was found to be to in respect of the second

prong of the test. See Lucas v. South Carolina Coastal

Commission, 505 U.S. 1003 (1992).

Essentially, this case affords the Court the opportunity to

establish the basic principles of federal law inherent to the enactment

of all zoning. If given the opportunity to fully brief this issue,

Petitioners would argue that the principles of comprehensiveness --

community-wide focus, reciprocal benefits and burdens, and wide

or significant geographic inclusion -- are necessary to assure that

zoning is not arbitrary, capricious or discriminatory. Petitioners

cannot identify a more fundamental or important issue of federal law

concerning the facial constitutionality of all zoning.'°

5. The Question Presented Is Likely To Recur

Although zoning is prevalent in municipalities, large expanses of

rural or semi-rural land throughout the United States are not zoned.

Often military air installations are set in or near such unzoned lands.

Accordingly, the mandate of the AICUZ Regulations, that air

installations seek compatible use zoning, exerts strong pressure to

zone such unzoned rural and semi-rural land. For example, Cannon

Air Force Base, in Curry County, New Mexico, also caused a unit

of local government to impose zoning on lands that were not

15. Subsumed within the comprehensiveness issue is the question of

whether it is a legitimate exercise of the City’s police power to enact zoning

for the sole benefit of the United States, not because of any identified harm

that is being caused by private property owners, but because a military air

installation is expanding its operations and the AICUZ Regulations prohibit

acquisition of most private property rights by eminent domain. If given the

opportunity to brief the issue, Petitioners would argue that such zoning is

in conflict with comprehensive zoning.

otherwise zoned solely for the purpose of implementing an AICUZ

Study. '°

The constitutional issue of comprehensiveness becomes even

more imperative when, as in this case, a municipality exercises

zoning powers extraterritorially. Since the affected property owners

cannot vote in municipal elections, only constitutional principles of

due process and equal protection can check an otherwise unfettered

exercise of zoning power. Articulation of the basic due process

rights attendant to enactment of zoning is of great importance to all

those property owners whose lands are not zoned and are in the

vicinity of military air installations or are in rural or semi-rural parts

of the United States and face zoning pressure.

Although AICUZ is the one source of pressure to zone such

lands, pressure also arises from increased development and urban

sprawl. Both sources of zoning pressure show no signs of abating.

The constitutional question presented is likely to recur.

B. Liability Of The United States Under 42 U.S.C. § 1983

This case also presents an important issue of federalism and the

proper constitutional relationship between United States agencies

and instrumentalities of the states.

16. In an unreported decision of the United States District Court for the

District of New Mexico, the zoning was found not to be comprehensive and

found to violate the New Mexico statutory requirement that zoning be

adopted in accordance with a comprehensive plan. See Snell v. Curry

County (N.M. 1989), No. 85-788-M, Memorandum Opinion and Order of

Senior U.S. District Judge Edwin Mechem, dated September 6, 1989 granting

Petitioners’ summary judgment. The constitutional issues raised in this case

were not presented in Snell because Curry County conceded that it was

required to zone in accordance with a comprehensive plan under New

Mexico law.

Reliance by DoD on local zoning powers exercised under color

of state law to proscribe otherwise lawful non-harmful uses of land,

in lieu of condemnation, appears to be unprecedented. No other

federal agency has been identified that has adopted similar

regulations and no case could be found alluding to analogous

regulations by any other federal agency.

Whether federal agencies can eschew eminent domain and

employ municipalities to adopt laws or regulations eliminating

private property rights for the benefit of the United States, is an

important questidn of federal law that has not been adjudicated."”

Relying on De-Tom Enter., Inc. v. United States, 552 F.2d

337 (Ct.Cl. 1977) and its progeny, the District Court held, and the

Fifth Circuit affirmed, that the AICUZ process is simply a military

air installation providing benign planning advice to the locality to aid

in its land use planning efforts (Mem. Op., infra at A-19). In De-

Tom, the Court of Claims held that the United States did not take

17. In part, the District Court, as affirmed by the Fifth Circuit, sought to

bypass this issue by stating that the Ordinance was actually enacted for the

benefit of the surrounding property owners and needed to protect their

safety. (Mem. Op., infra at A-9.) The Fifth Circuit’s decision is in conflict

with Hageman v. Board of Trustees of Wayne Township, 20 Ohio App.2d 12,

252 N.E.2d 507, 512 (Ct.App. 1969). There, the Ohio Court of Appeals: 1)

struck down municipal zoning enacted to implement the Wright-Patterson

Air Force Base AICUZ study; 2) rejected the contention that the zoning was

enacted to protect property owners surrounding the base; and 3) held that

“(t]he source of the threat to their safety lies in the present and future uses

of Wright-Patterson Air Force Base, which are uses for the benefit of a

governmental agency.” Jd., 251 N.E.2d at 512.

In this regard, there is no factual dispute that the Sheppard

Expansion triggered the preparation of the AICUZ Study and the enactment

of the Ordinance. Neither the City nor the United States ever asserted that

any uses of Petitioners’ lands encroached upon or interfered with any Base

activities.

private property when military air installation officials testified in

opposition to a private property owner’s proposal to rezone its

property to allow significant new development.

Put simply, De-Tom holds that the mere act of opposing a

proposed rezoning, without more, did not cause a taking by the

United States. The Court concluded that the United States was

acting, as any property owner could, to protect its interests. Under

the facts and claims before the Court of Claims, Petitioners do not

assert that De-Tom was decided in error.'®

However, an important federal question is presented concerning

potential liability of the United States and its agents on non-takings

grounds when the United States military does not merely act

defensively to preserve the status quo; but affirmatively seeks

enactment of zoning, solely for the benefit of one of its air

installations (via municipal powers exercised under color of state

law), to prohibit numerous legal non-harmful land uses enumerated

in the AICUZ Regulations.

It is disturbing that DoD adopted regulations forcing its air

installations to seek such zoning from municipalities, yet now asserts

that it cannot be held liable for any resulting unconstitutional zoning

because its personnel were purportedly merely giving planning

advice to localities. As posited by the United States, because only

“advice” is being given, any liability arising from imposition of

unconstitutional zoning rests solely with the municipality.

If given the opportunity to brief this issue, Petitioners would

18. Of course, as De-Tom was litigated before the Court of Claims, the Court

had no jurisdiction to consider whether any other non-takings basis for

liability could exist under differing facts.

argue that the United States and/or its personnel are jointly liable

with the City for imposition of unconstitutional zoning, as they

collectively acted as “co-zoners” under the facts of this case. In that

regard, it is significant that every land use regulation imposed by the

Ordinance was incorporated by reference, or copied virtually

verbatim, from the Sheppard AICUZ Study and those, in turn,

were substantially copied from the AICUZ Regulations.

In other words, if the zoning called for in the AICUZ

Regulations, crafted in the Sheppard AICUZ study, sought and

obtained by Sheppard personnel from the City, is unconstitutional

-- either because it is not comprehensive or otherwise is not a

constitutionally permitted exercise of the municipal police power --

then, an important federal law question is presented, to wit: whether

the United States and/or its personnel acted jointly with the City to

deprive Petitioners of their federally protected constitutional nights

under color of state law as proscribed by 42 U.S.C. § 1983? This

federal question is likely to recur as other municipalities zone to

implement AICUZ studies and should be settled by this Court now.

~ CONCLUSION

For the reasons stated hereinabove, Petitioners pray that the

Petition for Writ of Certiorari be granted.

Respectfully submitted,

Steven Barshov

Stadtmauer Bailkin LLP

850 Third Avenue

New York, New York 10022

(212) 822-2247

July 9, 2001

tena

A-1l

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-11249

CHESTER COX, JR., ET AL.,

Plaintiffs - Appellants,

versus

CITY OF WICHITA FALLS, TEXAS, a Texas

Incorporated Municipality, ET AL.,

Defendants - Appellees.

Appeal from the United States District Court

for the Northern District of Texas

(7:96-CV-145)

Before GARWOOD, HALL,' and BARKSDALE, Circuit

Judges.

PER CURIAM:?

AFFIRMED. See 5" Cir. R. 47.6.

1. Circuit Judge of the Ninth Circuit, sitting by designation.

2. Pursuant to 5* CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5“ CIR. R. 47.5.4.

A-2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

CHESTER COX, JR., etal, §

Plaintiffs,

vs. Case No. 7:96-CV-145-X

FALLS, TEXAS, A Texas

Incorporated Municipality,

CITY OF WICHITA §

et al, §

Before the Court are the following:

(1) City of Wichita Falls’ Motion for Summary

Judgment (and brief in support), filed January 27, 1999;

(2) Plaintiff's Memorandum of Law in Opposition to

City of Wichita Falls’ Motion for Summary Judgment, filed

February 16, 1999;

(3) Cityof Wichita Falls’ Briefin Reply to Plaintiff's

Response to City of Wichita Falls’ Motion for Summary Judgment,

filed March 2, 1999;

A-3

(4) United States’’ Motion for Summary Judgment (and

brief in support), filed January 29, 1999;

(5) Plaintiffs’ Memorandum of Law in Opposition

to the United States’ Motion for Summary Judgment, filed February

18, 1999;

(6) Undisputed Documents Relevant to Adjudication of

the Parties’ Pending Motions for Summary Judgment, filed February

18, 1999; and

(7) United States’ Reply to Plaintiffs’ Opposition to the

United States’ Motion for Summary Judgment, filed March 3, 1999.

After carefully considering the motions, briefs, supporting

evidentiary submissions, and applicable law, the Court determines

that no issues of material fact exist with respect to the issues raised

in the motions for summary judgment. Therefore, the City of

Wichita Falls’ Motion for Summary Judgment and the United

States’ Motion for Summary Judgment are both GRANTED.

1. The United States of America filed its Motion for summary Judgmetn on

behalf of itself and on behalf of all Federal Officers and Federal Defendants

named as parties. The Federal Defendants are: the United States of America;

the United States Department of Defense; William H. Perry, in his Official

Capacity as Secretary of the Department of Defense [or sucessor]; the

United States Department of the Air force; Sheila Widnall, in her Official

Capacity as Secretrary of the Department of the Air Force [or successor];

Sheppard Air Force Base; and General Michael Zettler, in his Official

Capacity as Base Commander of Sheppard Air Force Base [or successor].

These entities and individuals will be collectively referred to herein as the

“Federal Defendants.”

A-4

BACKGROUND

This is an action brought by owners of real property located

outside the corporate limits of Wichita Falls, Texas (the “City’”) and

within the unincorporated area of the County governed by a 1994

airport zoning ordinance known as Ordinance 155-94 (the

“Ordinance”) adopted by the City. The Plaintiffs live in close

proximity to Sheppard Air Force Base (“Sheppard”’), and are

challenging the constitutionality of the Ordinance and the

constitutionality of the Department of Defense (“DoD”’) regulations

which establish the Air Installation Compatible Use Zone program |

(“AICUZ Regulations”).”

The AICUZ program is a DoD planning program designed

to promote compatible land use around airfields utilized by the

military departments. As a part of the AICUZ process, military

installations with a flying mission in the United States must publish

reports that describe the obstruction, noise, and accident potential

areas, evaluate the compatibility of current and projected land use,

and provide recommendations for use by local communities. Noise

studies and noise contour maps are a significant aspect of the

AICUZ process. Under the AICUZ process, however,

fundamental land use decisions remain subject to state and local

authority.

Pursuant to the AICUZ Regulations, personnel at Sheppard

prepared AICUZ Studies which recommended, inter alia, that

zoning ordinances should be adopted or modified to reflect the

compatible land uses outlined in the Sheppard AICUZ Studies. The

City enacted the Ordinance, which incorporated the Sheppard

2. 32 CFR. § 256.1 et. seq.

A-5

AICUZ Studies. The Ordinance’s stated purpose is:

“{T]o ensure protection of the utility of Sheppard Air Force

Base/Wichita Falls Municipal Airport and the public

investment by the regulation of land uses in the vicinity of

Sheppard Air Force Base/Wichita Falls Municipal Airport

where it has been determined that Sheppard Air Force

Base is an essential part of the City and surrounding cities

and counties. It is also the purpose of this provision to

protect the health, safety, and general welfare of the public

where it is recognized that obstructions, aircraft accidents,

and excessive noise have the potential for endangering or

harming the lives and/or property of users or occupants of

land in the vicinity of Sheppard Air Force Base/Wichita

Falls Municipal Airport.”?

A. laintiffs’ Contenti Regardin dinance

The Ordinance regulates the use of property inside the City

limits, as well as in an area of Wichita County outside the City limits

(the “Extraterritorial Area”). The Ordinance is the only zoning

governing the use of property in the Extraterritorial Area. Plaintiffs

contend that there isno comprehensive plan for the unincorporated

area of Wichita County, including the Extraterritorial Area. In the

first cause of action, Plaintiffs contend that the Ordinance was not

adopted in accordance with a comprehensive plan allegedly causing

the Ordinance to be unconstitutional on its face insofar as it attempts

to regulate the use of property in the Extraterritorial Area in violation

of the due process and equal protection clauses of the Fifth and

3. See Tab A to Undisputed Documents Relevant to Adjudication of the

Parties’ Pending Motions for Summary Judgment, Attachment A, Section

6405.

A-6

Fourteenth Amendments to the United States Constitution and the

Texas State Constitution.

Plaintiffs also contend that the Ordinance was enacted for

the purpose of granting valuable property nghts to the United States

which allegedly it could obtain directly and unilaterally only via

condemnation. In the second cause of action, Plaintiffs allege that

the Ordinance was not enacted for a legitimate police power

purpose, but to eliminate the need for the United States to condemn

such rights, which Plaintiffs contend is not a legitimate police power

purpose and therefore violates the due process rights protected by

the Fifth and Fourteenth Amendments to the United States

Constitution, as well as the Texas State Constitution.

Plaintiffs also contend that the AICUZ Regulations require

officials and employees of the United States to cause AICUZ

Studies to be implemented by enactment of zoning ordinances

pursuant to zoning powers granted to units of local government

under color of state law. Plaintiffs contend that officials and

employees of Sheppard joined with the City to create the Ordinance

and cause its enactment under zoning powers granted to the City

under state law. In the third cause of action, Plaintiffs allege that the

adoption of the Ordinance violated Plaintiffs’ civil nights in violation

of 42 U.S.C. § 1983 in that it allegedly violated Plaintiffs’ rights to

due process of law and equa! protection of the laws. Plaintiffs’

further allege that these alleged joint conspiratorial actions also

violate 42 U.S.C. § 1985. Plaintiffs further seek their attorneys’

fees under 42 U.S.C. § 1988 for their efforts in seeking a

declaration that the Ordinance is invalid and an injunction

prospectively prohibiting its enforcement in the unincorporated area

of Wichita County.

A-7

B. Plaintiffs’ Contentions Regarding the

Constitutionality of AICUZ Regulations

Plaintiffs also contend that Congress has not delegated any

authority to DoD to promulgate the AICUZ Regulations or to adopt

an AICUZ program. In the fourth cause of action, Plaintiffs allege

that the AICUZ Regulations are an unconstitutional invasion of

Congress’ legislative powers.

Plaintiffs also contend that DoD, its departments and air

installations have authority to purchase or condemn property rights

which are necessary for maintenance and operation of the DoD’s

military air installations. Plaintiffs allege that DoD has no authority

to evade the requirements that it obtain needed property rights via

purchase or eminent domain. In the fifth cause of action, Plaintiffs

allege that the AICUZ Regulations are ultra vires and

unconstitutional because they require DoD, its departments, and its

air installations to evade the requirement that property rights needed

by the United States be condemned and just compensation paid.

In addition, Plaintiffs contend the AICUZ Regulations require

United States military air installations to seek the destruction of

private property rights which the United States would never

condemn. Thus, in the sixth cause of action, Plaintiffs allege that the

AICUZ Regulations are ultra vires, arbitrary, and capricious.

Finally, to the extent that the AICUZ Regulations mandate that an

air installation must attempt to cause the enactment ofa zoning

ordinance to implement an AICUZ Study in an area in which there

isno comprehensive zoning, Plaintiffs contend, in the seventh cause

of action, that the AICUZ Regulations are unconstitutional in the

Extraterritorial Area because they allegedly attempt to cause the

creation of unconstitutional zoning.

A-8

SUMMARY JUDGMENT

Summary judgment is appropriate when, viewing the

evidence in the light most favorable to the nonmoving party, the

summary judgment record demonstrates that no genuine issue of

material fact exists, and therefore, the moving party is entitled to

judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322-24 (1986). Once the movant has met its burden, the

burden shifts to the nonmovant te establish with significant probative

evidence that a material issue of fact exists. Kansa Reinsurance

Co., Ltd. v. Congressional Mortgage Corp. of Tex., 20 F.3d

1362, 1371(S5th Cir. 1994). A dispute about a material fact is

genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). The nonmovant may not rest

upon the pleadings but must identify specific facts that establish a

genuine issue exists for trial. Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (Sth Cir. 1994). The nonmovant “must do more than

simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986).

In this case, all parties agree that there are no genuine issues

of material fact existing and that this case should be decided by the

Court on summary judgment.

DISCUSSION

A. Summary Judgment is Granted on

Plaintiffs’ Fi of Acti

In their first cause of action, Plaintiffs contend that the

Ordinance was not adopted in accordance with a comprehensive

A-9

plan allegedly causing the Ordinance to be unconstitutional on its

face insofar as it attempts to regulate the use of property in the

Extraterritorial Area in violation of the due process and equal

protection clauses of the Fifth and Fourteenth Amendments to the

United States Constitution and the Texas State Constitution.‘

However, due to the existence of a Texas statute’ which does not

require the City to have a comprehensive plan to enact

extraterritorial airport zoning around Sheppard, summary judgment

is granted against Plaintiffs’ on Plaintiffs’ first cause of action.

While Texas Local Government Code § 211.004 does

require municipalities (such as the City) to have a “comprehensive

plan” for their general zoning, the Texas legislature chose different

requirements when it enacted the airport zoning statute, Texas Local

Government Code § 241.001, et seg. The most relevant section

for purposes of this case, Section 241.015, specifically refers to

comprehensive zoning ordinances but does not require

incorporation of airport zoning regulations into a municipality’s

comprehensive plan. This is evident from the pertinent language of

Section 241.015, which states:

“A political subdivision may incorporate an airport zoning

4. Although Plaintiffs have made due process and equal protection claims

under both the Texas and the United States Constitutions, the analysis of

those claims is the same. See Reid v. Rolling Fork Public Utility Dist., 979

F.2d 1084, 1089 (Sth Cir. 1992) (equal protection); Garza-Vale v. Kwiecien,

796 S.W.2d 500, 505 (Tex. App. - San Antonio 1990, writ denied) (due

process). As explained later in this Memorandum Opinion and Order,

summary judgment is GRANTED against Plaintiffs on Plaintiffs’ due process

and equal protection claims.

5. Plaintiffs state in footnote 2 to their February 16, 1999 Memorandum of

Law in Opposition to City of Wichita Falls’ Motion for Summary Judgment

that they are not challenging the constitutionality of any Texas state statute.

A-10

regulation in a comprehensive zoning ordinance and

administer and enforce it in connection with the

administration and enforcement of the comprehensive

zoning ordinance if: (1) the two zoning regulations apply, in

whole or in part, to the same area; and (2) the

comprehensive zoning ordinance includes, among other

matters, a regulation on the height of buildings.” (Emphasis

added).

The Court concludes that had the Texas Legislature intended for

airport zoning regulations to be mandatorily required to be

incorporated into a comprehensive zoning ordinance, the Legislature

would have used the word “shall” instead of “may.” By using the

word “may,” an option was given to so incorporate in certain

circumstances if the municipality so chooses (as opposed to a

requirement being mandated).° In other words, if the Legislature

had intended a comprehensive plan to be a requirement for airport

zoning, it would have identified such a requirement in the statute

(Section 241.015), which it did not do. Therefore, the fact that the

Ordinance was not adopted in accordance with a comprehensive

6. The Court also notes that Section 241.013 of the Texas Local Government

Code specifically extends the extraterritorial jurisdiction of municipalities

(such as the City), giving municipalities (such as the City) authority to

extraterritorially zone certain areas near airports which are outside the

political subdivision.

Sa a en ilo ale ae gaan

A-11

plan does not render the Ordinance to be unconstitutional.’

Summary judgment is GRANTED against Plaintiffs on Plaintiffs’ first

cause of action.

B. Summary Judgment is Granted on

Plaintiffs’ Second Cause of Action

Plaintiffs contend that the Ordinance was enacted for the

purpose of granting valuable property rights to the United States

which allegedly it could obtain directly and unilaterally only via

condemnation. In their second cause of action, Plaintiffs allege that

the Ordinance was not enacted for a legitimate police power

purpose, but to eliminate the need for the United States to condemn

such nghts, which Plaintiffs contend is not a legitimate police power

purpose and therefore violates the due process rights protected by

the Fifth and Fourteenth Amendments to the United States

Constitution, as well as the Texas State Constitution. However,

because the Court concludes that the Ordinance was enacted for a

legitimate police power purpose and there was no violation of due

process, summary judgment is GRANTED against Plaintiffs on

Plaintiffs’ second cause of action.

The Fifth Circuit has “long insisted that review of municipal

zoning is within the domain of the states, the business of their own

7. The Court is similarly unpersuaded by Plaintiffs’ argument that by virtue

of the fact that the Ordinance was incorporated into the City’s general

zoning ordinance, the Ordinance must now somehow be accomplished in

accordance with the comprehensive plan requirements for general zoning.

This simple book-keeping decision to list the Ordinance within the general

zoning ordinance was no doubt so as to allow the citizenry the ability to

logically locate the Ordinance more easily. In essence, it was an indexing

issue. The inescapable conclusion remains that under Section 241.015, the

Ordinance is not unconstitutional on its face because it was not adopted in

accordance with a comprehensive plan.

A-12

legislatures, agencies, and judiciaries, and should seldom be the

concer of federal courts.’” FM Properties Operating Co. v. City

of Austin, 93 F.3d 167, 173-74 (5" Cir. 1996), citing Shelton v.

City of College Station, 780 F.2d 475, 477 (5 Cir. 1986) (en

banc), certs. denied, 477 U.S. 905 and 479 U.S. 822 (1986).

“Nonetheless, when challenges to such land-use decisions aspire to

constitutional stature, we view those decisions as “quasi-legislative’

in nature, and thus sustainable against a substantive due process

challenge if there exists therefor ‘any conceivable rational basis.’

(Citations omitted). In other words, such government action

comports with substantive due process if the action is rationally

related to a legitimate government interest.”” FM Properties, 93

F.3d at 174 (citations omitted). “Onlyifsuch government action is

‘clearly arbitrary and unreasonable, having no substantial relation to

the public health, safety, morals, or general welfare,’ may it be

declared unconstitutional.” Jd.

When legislation (such as a zoning ordinance) is challenged,

whether on due process or equal protection grounds, it is presumed

to be valid. Goldblatt v. Town of Hempstead, N. Y., 369 U.S.

590, 594 (1962) (due process); City of Cleburne, Tex. v.

Cleburne Living Center, 473 U.S. 432, 440 (1985) (equal

protection); See also Schafer v. City of New Orleans, 743 F.2d

1086, 1089 (5" Cir. 1984) (“Zoning ordinances and similar

regulations on the use of property are presumed valid’’). Moreover,

the City Council’s legislative findings with respect to the Ordinance

are cloaked with a presumption of validity and are to be given much

deference. FM Properties, 93 F.3d at 175. That deference is so

substantial that for Plaintiffs to successfully challenge this legislative

judgment, Plaintiffs “must convince the court that the legislative facts

on which [the Ordinance] is apparently based could not reasonably

be conceived to be true by the governmental decisionmaker.” Jd. ;

See also Shelton, 780 F.2d at 479 (due process claim); Vance v.

A-13

Bradley, 440 U.S. 93, 110-111(1979) (equal protection claim).

The true purpose of the Ordinance “(i.e., the actual purpose that

may have motivated its proponents, assuming this can be known) is

irrelevant for rational basis analysis. The question is only whether

a rational relationship exists between [the Ordinance] and a

conceivable legitimate governmental objective.” FM Properties,

93 F. 3d at 174-75 (emphasis original). Even where it is contended

that the purported rational basis for enacting an ordinance is merely

a pretext to mask arbitrary and capricious action, if it is “at least

debatable” that the ordinance has any rational basis, summary

judgment is proper. Texas Manufactured Housing Association,

Inc. v. City of Nederland, 101 F.3d 1095, 1106 (5" Cir. 1996),

cert. denied, 521 U.S. 1112 (1997); Shelton, 780 F.2d at 483.

Thus, the relevant inquiry for Plaintiffs’ substantive due process

challenge is whether there is a rational basis for the City’s enactment

and enforcement of the Ordinance.* Nederland, 101 F.3d at 1106;

Shelton, 780 F.2d at 482 (“We hold that the outside limit upon a

state’s exercise of its police power in zoning decisions is that they

must have a rational basis”); Schaffer, 743 F.2d at 1089 (“The due

process clause, in its substantive sense, requires only that the

regulation be reasonably related to a valid governmental purpose”).

The Court concludes that the enactment of the Ordinance

was a proper exercise of the police power and was rationally

related to a legitimate governmental objective -- to protect the lives

and property of the users of the airport at Sheppard, to protect the

lives and property of the occupants of the land in the vicinity of the

8. As stated in footnote 4 above, the analysis of Plaintiffs’ due process

claim under the Texas and United States Constitutions is the same.

A-14

airport at Sheppard,’ and to preserve Sheppard as a viable social

and economic resource for the City. Thus, it is clear that there

exists a rational basis for the City’s enactment of the Ordinance and

it is clear that the Ordinance is reasonably related to a valid

governmental purpose. Moreover, when enacting the Ordinance,

the City Council found thatthe Ordinance would help to “protect

the health, safety and general welfare of those living or working on

or around Sheppard Air Force Base” and would “preserve

Sheppard Air Force Base as a viable social and economic resource

for the City and the North Central Texas area.” Given the great

deference that is given to these legislative findings of the City

Council, Plaintiffs have failed to convince the Court “that the

legislative facts on which [the Ordinance] is apparently based could

not reasonably be conceived to be true by the governmental

decisionmaker.” FM Properties, 93 F.3d at 175. Therefore,

Plaintiffs’ pretext argument fails. Summary judgment is GRANTED

against Plaintiffs on Plaintiffs’ second cause of action.

CG. Summary Judgment is Granted on

Plaintiffs’ Third C F Acti

Plaintiffs contend that the AICUZ Regulations require

officials and employees of the United States to cause AICUZ

Studies to be implemented by enactment of zoning ordinances

pursuant to zoning powers granted to units of local government

9. The Texas Legislature has similarly recognized the dangers of airport

hazards and the legitimate issues of public safety surrounding airport

hazards. See Texas Local Government Code § 241.002. Because of these

hazards, and in the interest of the public health, public safety, and general

welfare, the Texas Legislature authorized political subdivisions to utilize the

police power to prevent the creation of these hazards. Jd. The Legislature

also granted certain political subdivisions those powers set forth in Texas

Local Government Code § 241.013.

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under color of state law. Plaintiffs contend that officials and

employees of Sheppard joined with the City to create the Ordinance

and cause its enactment under zoning powers granted to the City

under state law. In the third cause of action, Plaintiffs allege that the

adoption of the Ordinance violated Plaintiffs’ civil rights inviolation

of 42 U.S.C. § 1983 in that it allegedly violated Plaintiffs’ rights to

due process of law and equal protection of the laws. Plaintiffs’

further allege that these alleged joint conspiratorial actions also

violate 42 U.S.C. § 1985. Plaintiffs further seek their attorneys’

fees under 42 U.S.C. § 1988 for their efforts in seeking a

declaration that the Ordinance is invalid and an injunction

prospectively prohibiting its enforcement in the unincorporated area

of Wichita County.

“Section 1983 affords a private cause of action to any party

deprived of a constitutional right under color of state law.”

Nederland, 101 F.3d at 1106. In the absence of a valid

constitutional claim, summary judgment is appropriate on § 1983

Claims. Jd.

The relevant inquiry for Plaintiffs’ substantive due process

challenge is whether there is a rational basis for the City’s enactment

and enforcement of the Ordinance. Nederland, 101 F.3d at 1106;

Shelton, 780 F.2d at 842 (“We hold that the outside limit upon a

State’s exercise of its police power in zoning decisions is that they

must have a rational basis”); Schaffer, 743 F.2d at 1089 (“The due

process clause, in its substantive sense, requires only that the

regulation be reasonably related to a valid governmental purpose”).

As for Plaintiffs’ equal protection claim, this claim is “subject to the

reasonable basis test, i.c., the decision of a governmental body does

not violate the equal protection guarantees if there is any basis for

the action that bears a debatably rational relationship to a

conceivable legitimate governmental end.” Reid, 979 F.2d at 1087.

A-16

Stated another way, an equal protection claim in the context of this

case requires only rationality review, which, in the context of this

case, requires merely that the classification drawn by the statute be

rationally related to a legitimate state interest. Nederland, 101 F.3d

at 1106; Reid, 979 F.2d at 1084 n. 11 (“The state standard

parallels the federal standard when it states that any rational basis

that can be conceived to support the legislative action under review

will satisfy constitutional muster’). As stated above, the City was

not required by law’ to incorporate the Ordinance within its

comprehensive plan, and the enactment of the Ordinance was a

proper exercise of the police power and was rationally related to a

legitimate governmental objective to protect the lives and property

of the users of the airport at Sheppard, to protect the lives and

property of the occupants of the land in the vicinity of the airport at

Sheppard,'' and to preserve Sheppard as a viable social and

economic resource for the City. Thus, it is clear that there exists a

rational basis for the City’s enactment of the Ordinance and it is

clear that the Ordinance is reasonably related to a valid

governmental purpose. It is also clear that there is a basis for the

action that bears a debatably rational relationship to a conceivable

legitimate governmental end. In conclusion, the Court holds that

Plaintiffs have not suffered a violation of their due process rights or

their equal protection rights'*and their § 1983 claim therefore fails

because there is an absence of a valid constitutional claim.

Nederland, 101 F.3d at 1106. Summary Judgment is GRANTED

against Plaintiffs on Plaintiffs’ § 1983 claim.

10. Texas Local Government Code, §241.015.

11. See footnote 9 above.

12. See footnote 4 above.

A-17

As for Plaintiffs’ claim under 42 U.S.C. §1985(3)"°, to state

a claim under § 1985(3), a complaint must allege:

“(1) a conspiracy of two or more persons; (2) for the

purpose of depriving, either directly or indirectly, any

person or class of persons equal protection of the laws, or

of equal privileges and immunities under the laws; and (3)

an act in furtherance of the conspiracy; (4) whereby a

person is either injured in his person or property or

deprived of any right or privilege of acitizen of the United

States.”

Word of Faith World Outreach Center Church, Inc. y. Sawyer,

90 F.3d 118, 124 (5" Cir. 1996), cert. denied, 520 U.S. 1117

(1997). Of course, “[e]ssential to the claim, however, is that the

conspiracy be motivated by racial animus.” Jd. As Plaintiffs have

not made any claim of racial animus, and as Plaintiffs have not

satisfied the second element in that there is no deprivation of equal

protection as set forth above, summary judgment is GRANTED

against Plaintiffs on Plaintiffs’ § 1985(3) claim. Summary judgment

is also GRANTED against Plaintiffs on Plaintiffs’ claim for

attorneys’ fees under 42 U.S.C. § 1988 since summary judgment

has been granted against Plaintiffs on Plaintiffs’ § 1983 and §

1985(3) claims.

D. Summary Judgment is Granted on

Plaintiffs’ Fourth Cause of Action

Plaintiffs contend that Congress has not delegated any

authority to the DoD to promulgate the AICUZ Regulations or to

13. Sub-parts (1) and (2) of § 1985 are not raised or implicated by Plaintiffs’

allegations.

A-18

adopt an AICUZ program. In the fourth cause of action, Plaintiffs

allege that the AICUZ Regulations are an unconstitutional invasion

of Congress’ legislative powers.

The Court has considered this claim and considers it to be

wholly without merit. As a preliminary matter, the AICUZ

Regulations cite the National Security Act of 1947, as amended, 61

Stat. 495 as their authority. More to the point, however, the Court

agrees with the Federal Defendants’ contention that it is

disingenuous to contend that every single regulation or act, by an

agency, must be specifically delineated by Congress. All that is

required is that the agency have broad discretion to carry out its

mission. Agencies (such as the DoD) possess, for the most part,

broad discretion in carrying out their declared goals, and Congress

has neither the time, nor the expertise, to micro-manage the day-to-

day operations of the United States Air Force. It is also well

established that agencies (such as the DoD) can promulgate rules or

regulations in furtherance of their mission. The Court concludes that

the AICUZ Regulations are not an unconstitutional invasion of

Congress’ legislative powers and summary judgment is GRANTED

against Plaintiffs on Plaintiffs’ fourth cause of action.

E. Summary Judgment is Granted on

Plaintiffs’ Fifth and Sixth C F Acti

Plaintiffs contend that DoD, its departments and air

installations have authority to purchase or condemn property rights

which are necessary for maintenance and operation of the DoD’s

military air installations. Plaintiffs allege that DoD has no authority

to evade the requirements that it obtain needed property rights via

purchase or eminent domain. In the fifth cause of action, Plaintiffs

allege that the AICUZ Regulations are ultra vires and

unconstitutional because they require DoD, its departments, and its

A-19

air installations to evade the requirement that property rights needed

by the United States be condemned and just compensation paid. In

addition, Plaintiffs contend the AICUZ Regulations require United

States military air installations to seek the destruction of private

property rights which the United States would never condemn.

Thus, in the sixth cause of action, Plaintiffs allege that the AICUZ

Regulations are ultra vires, arbitrary, and capricious.

The Court has considered these claims and considers them

to be wholly without merit. Summary judgment must be granted on

both of these causes of action. As much as Plaintiffs do not want to

recognize this fact, AICUZ studies are planning efforts. They do not

control or regulate the use of private lands, and the determination to

permit or restrict development or use of private lands is left to the

local jurisdiction. See Stephens v. United States, 11 Cl. Ct. 352,

363 (1986) (AICUZ studies are “advisory only” and “the

determination to build is ultimately left to the local jurisdiction”);

Blue v. United States, 21 Cl. Ct. 359, 362 (1990) (“AICUZ

studies are for advisory purposes only. The authority to permit or

restrict development or use of private lands is left to the local

jurisdiction”); Branning v. United States, 228 Ct. Cl. 240, 654

F.2d 88, 95 (1981), aff'd, 784 F.2d 361 (Fed. Cir. 1986) (“The

AICUZ is aconcept of identifying compatible and incompatible land

use around an air station, the purpose being to guide compatible

private development through the cooperation with local

jurisdictions...”). Second, the United States (and its Air Force), like

any other citizen or landowner, has the right to request local

governments to make zoning changes. Therefore, it can participate

in local land use proceedings like any other landowner or citizen

who attempts to persuade the local legislative body to regulate land

use in a manner which is consistent with his use of the land. Blue,

21 Cl. Ct. at 362; De-Tom Enterprises, Inc. v United States, 213

Ct. Cl. 362, 552 F.2d 337, 339-40 (1977). Thus, as has been

A-20

thoroughly chronicled above, there is nothing wrong with the United

States (and its Air Force) requesting zoning changes from the City

through its AICUZ program. The fact that it does request such

changes does not magically transform the requests into

unconstitutional actions. Moreover, since the authority to permit or

restrict development or use of private land is left to the local

jurisdiction, the Court rejects Plaintiffs’ argument that the Federal

Defendants are “‘co-zoners” with the City. Thus, to summarize, the

Court holds that (1) the United States (and its Air Force), like any

other citizen and landowner, has the right to request local

governments to make zoning changes; (2) the fact that these

requests criginated with recommendations in an AICUZ study does

not render the act of making them unconstitutional; (3) the fact that

the power to condemn private property, subject to Congressional

approval and the payment of just compensation, is a power inherent

in the sovereign, does not make the act of requesting zoning changes

unconstitutional, arbitrary, or capricious; and (4) the AICUZ

Regulations do not carry with them any power to compel a local

government to enact such zoning changes (thereby mandating

rejection of Plaintiffs’ co-zoner argument). For the above reasons,

summary judgment must be GRANTED against Plaintiffs on

Plaintiffs’ fifth and sixth causes of action.

F. Summary Judgment is Granted on

Plaintiffs’ Seventh Causes of Action

Plaintiffs contend in their seventh cause of action that to the

extent that the AICUZ Regulations mandate that an air installation

must attempt to cause the enactment of a zoning ordinance to

implement an AICUZ Study in an area in which there is no

comprehensive zoning, the AICUZ Regulations are unconstitutional

in the Extraterritorial Area because they allegedly attempt to cause

the creation of unconstitutional zoning. Stated more succinctly, “[b]y

A-21

causing zoning that is not in accordance with a comprehensive plan,

the AICUZ Regulations are unconstitutional as applied to

Plaintiffs.”'* Of course, as discussed above, the Ordinance was not

unconstitutional due to the fact that it was not adopted in

accordance with a comprehensive plan. Accordingly, summary

Judgment is GRANTED against Plaintiffs on Plaintiffs’ seventh cause

of action.

CONCLUSION

For the reasons discussed above, the City of Wichita Falls’

Motion for Summary Judgment and the United States’ Motion for

Summary Judgment are both GRANTED and this case is hereby

DISMISSED WITH PREJUDICE. Therefore, the City of Wichita

Falls’ Motion to Dismiss, filed J anuary 27, 1999, is DENIED AS

MOOT. Similarly, the Federal Defendants’ Motion to Compel

Answers to Interrogatories and Responses to Requests for

Production of Documents and to Deem Admissions Admitted, filed

December 17, 1998, is DENIED AS MOOT.

SO ORDERED this 1st day of September, 1999.

Joe Kendall

USS. District Judge

14. See page 15 of Plaintiffs’ February 18, 1999 Memorandum of Law In

Opposition to the United States’ Motion for Summary Judgment.

A-22

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

CHESTER COX, JR.., et al,

Plaintiffs,

VS. No. 7:96-CV-145-X

CITY OF WICHITA §

FALLS, TEXAS, A Texas §

Incorporated Municipality, §

et al, §

Defendants.

JUDGMENT

By aseparate Memorandum Opinion and Order filed today,

itis ORDERED, ADJUDGED, and DECREED that Plaintiffs take

nothing against Defendants herein. Therefore, all of Plaintiffs’ claims

against all Defendants herein are DISMISSED WITH

PREJUDICE.

SO ORDERED this 1“ day of September, 1999.

Joe Kendall

US. District Judge

A-23

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

CHESTER COX, JR., et al,

Plaintiffs,

Vs. § No. 7:96-CV-145-X

CITY OF WICHITA §

FALLS, TEXAS, A Texas §

Incorporated Municipality, §

et al, 8

Defendants.

ORDER

Plaintiffs’ Motion for Relief from Judgment, for Leave to

Amend the Complaint, and to add the State of Texas as a Party,

filed on November 2, 1999, is hereby DENIED.

It is so ORDERED.

JOE KENDALL

UNITED STATES

DISTRICT JUDGE

Signed on July 14, 2000.

A-24

CODE OF FEDERAL REGULATIONS

TITLE 32--NATIONAL DEFENSE

SUBTITLE A--DEPARTMENT OF DEFENSE

CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE

SUBCHAPTER M--MISCELLANEOUS

PART 256

AIR INSTALLATIONS COMPATIBLE USE ZONES

Sec.

256.1 Purpose.

256.2 Applicability.

256.3 Criteria.

256.4 Policy.

256.5 The air installation compatible use program.

256.6 Runway classification by aircraft type.

256.7 Accident potential zone guidelines.

256.8 Land use compatibility guidelines for accident

potential.

256.9 Real estate interests to be considered for clear zones

and accident potential zone.

256.10 Air installations compatible use zone noise descriptors.

256.11 Effective date and implementation.

AUTHORITY: National Security Act of 1947, as amended, 61

Stat. 495. 7

SOURCE: 42 FR 773, Jan. 4, 1977, unless otherwise noted.

§ 256.1 Purpose.

This part: (a) Sets forth Department of Defense policy on

achieving compatible use of public and private lands in the vicinity

of military airfields; (b) defines (1) required restrictions on the uses

and heights of natural and man-made objects in the vicinity of air

installations to provide for safety of flight and to assure that people

bh Dak FCN aw SHG SIME DA aE Rested AE IN SO baile vedere ie ty

VOTRE EE We Sea Gel, FL RR Sa lnc ca Poop np ab cpanel NNR A a tem cl

‘4 SAE uoainy

A-25

and facilities are not concentrated in areas susceptible to aircraft

accidents; and (2) desirable restrictions on land use to assure its

compatibility with the characteristics, including noise, of air

installations operations; (c) describes the procedures by which Air

Installations Compatible Use Zones (AICUZ) may be defined; and

(d) provides policy on the extent of Government interest in real

property within these zones which may be retained or acquired to

protect the operational capability of active military airfields (subject

in each case to the availability of required authorizations and

appropriations).

§ 256.2 Applicability.

This part applies to air installations of the Military Departments

located within the United States, its territories, trusts, and

possessions.

§ 256.3 Criteria.

(a) General. The Air Installations Compatible Use Zone for each

military air installation shall consist of (1) land areas upon which

certain uses may obstruct the airspace or otherwise be hazardous

to aircraft operations, and (2) land areas which are exposed to the

health, safety or welfare hazards of aircraft operations.

(b) Height of obstructions. The land area and height standards

defined in AFM 86-8,' NavFac P-272 and P-80,' and TM 5-803-

4' will be used for purposes of height restriction criteria.

(1) General.

(i) Areas immediately beyond the ends of runways and

1. Filed as part of original. Copies available in the Office of the Assistant

Secretary of Defense (Installations and Logistics) - ID, Washington, D.C.

20301.

A-26

along primary flight paths are subject to more aircraft accidents than

other areas. For this reason, these areas should remain

undeveloped, or if developed should be only sparsely developed in

order to limit, as much as possible, the adverse effects of a possible

aircraft accident.

(ii) DOD fixed wing runways are separated into two types

for the purpose of defining accident potential areas. Class A

runways are those restricted to light aircraft (See § 256.6) and

which do not have the potential for development for heavy or high

performance aircraft use or for which no foreseeable requirement

for such use exists. Typically these runways have less than 10% of

their operations involving Class B aircraft (§ 256.6) and are less

than 8000 feet long. Class B runways are all other fixed wing

runways.

(iii) The following descriptions of Accident Potential Zones

are guidelines only. Their strict application would result in increasing

the safety of the general public but would not provide complete

protection against the effects of aircraft accidents. Such a degree

of protection is probably impossible to achieve. Local situations

may differ significantly from the assumptions and data upon which

these guidelines are based and require individual study. Where it is

desirable to restrict the density of development ofan area, it is not

usually possible to state that one density is safe and another is not.

Safety is a relative term and the objective should be the realization

of the greatest degree of safety that can be reasonably attained.

(2) Accident potential and clear zones (See § 256.7).

(i) The area immediately beyond the end ofa runway is the

"Clear Zone", an area which possesses a high potential for

accidents, and has traditionally been acquired by the Government

in fee and kept clear of obstructions to flight.

A-27

(ii) Accident Potential Zone I (APZ I) is the area beyond

the clear zone which possesses a significant potential for accidents.

(iii) Accident Potential Zone I (APZ II) is an area beyond

APZ I having a measurable potential for accidents.

(iv) Modifications to APZs I and II will be considered if:

(A) The runway is infrequently used.

(B) The prevailing wind conditions are such that a large

percentage (i.e., over 80 percent) of the operations are in one

direction.

herein during normal flight operations (modifications may be made

to alter these zones and adjust them to conform to the line of flight).

(D) Local accident history indicates consideration

of different areas. :

(E) Other unusual conditions exist.

(v) The takeoff safety zone for VFR rotary-wing facilities

will be used for the clear zone; the remainder of the approach-

departure zone will be used as APZ L

(vi) Land use compatibility with clear zones and APZs is

shown in § 256.8.

(d) Noise—

(1) General. Noise exposure is described in various ways. In

1964, the Department of Defense began using the Composite Noise

Rating (CNR) system to describe aircraft noise. Several years ago

the Noise Exposure Forecast (NEF) system began to replace CNR.

In August 1974, the Environment Protection Agency notified all

Federal agencies of intent to implement the Day-Night Average

Sound Level (Ldn) noise descriptor, and this was subsequently

A-28

adopted by the DOD. This Ldn system will be used for air

installations. Where AICUZ studies have been published using the

CNR of NEF systems or where studies have progressed to the

point that a change in the descriptor system is impractical or

uneconomical, such studies may be published and continued in use.

However, in such cases, data necessary for conversion to Ldn

should be collected and studies should be revised as soon as time

and budgetary considerations permit. However, if State or local

laws require some other noise descriptor, it may be used in lieu of

Ldn.

(2) Noise Zones.

(i) As aminimum, contours for Ldn 65, 70, 75 and 80 shall

be plotted on maps as part of AICUZ studies.

(ii) See § 256.10 for a further discussion of Ldn use and

conversion to Ldn from previously used systems.

§ 256.4 Policy.

(a) General. Asa first priority step, all reasonable, economical,

and practical measures will be taken to reduce and/or control the

generation of noise from flying and flying related activities. Typical

measures normally include siting of engine test and runup facilities in

remote areas if practical, provision of sound suppression equipment

where necessary, and may include additional measures such as

adjustment of traffic pattems to avoid built-up areas where such can

be accomplished with safety and without significant impairment of

operational effectiveness. After all reasonable noise source control

measures have been taken, there will usually remain significant land

areas wherein the total noise exposure is such as to be incompatible

with certain uses.

A-29

(b) Compatible use land--

(1) General.

(1) DOD policy is to work toward achieving compatibility

between air installations and neighboring civilian communities by

means of a compatible land use planning and control process

conducted by the local community.

(ii) Land use compatibility guidelines will be specified for

each Clear Zone, Accident Potential Zone, Noise Zone and

combination of these as appropriate.

(iii) The method of control and regulation of land usage

within each zone will vary according to local conditions. In all

instances the primary objective will be to identify planning areas and

reasonable land use guidelines which will be recommended to

appropriate agencies who are in control of the planning functions for

the affected areas.

(2) Property rights acquisition--

(i) General. While noise generated by aircraft at military air

installations should be an integral element of land use compatibility

efforts, the acquisition of property rights on the basis of noise by the

Department of Defense may not be in the long term best interests of

the United States. Therefore, while the complete requirement for

individual installations should be defined prior to any programming

actions, acquisition of interests should be programmed in

accordance with the following priorities.

(ii) Priorities.

(A) The first priority is the acquisition in fee and/or

appropriate restrictive easements of lands within the clear zones

whenever practicable.

A-30

(B) Outside the clear zone, program for the acquisition

of interests, first in Accident Potential Zones and secondly in high

noise areas only when all possibilities of achieving compatible use

zoning, or similar protection, have been exhausted and the

operational integrity of the air installation is manifestly threatened.

If programming actions are considered necessary, complete records

ofall discussions, negotiations, testimony, etc., with or before all

local officials, boards, etc., must be maintained. This will ensure

that documentation is available to indicate that all reasonable and

prudent efforts were made to preclude incompatible land use

through cooperation with local governmental officials and that all

recourse to such action has been exhausted. Such records shall

accompany programming actions and/or apportionment requests for

items programmed prior to the date of this part. In addition, a

complete economic analysis and assessment of the future of the

installation must be included.

(1) Costs of establishing and maintaining compatible use zones

must be weighed against other available options, such as changing

the installation's mission and relocating the flying activities, closing

the installation, or such other courses of action as may be available.

In performing analyses of this type, exceptional care must be

exercised to assure that a decision to change or relocate a mission

is fully justified and that all aspects of the situation have been

thoroughly considered.

(2) When, as a result of such analysis, it is determined that

relocation or abandonment ofa mission will be required, then no

new construction shall be undertaken in support of such activities

except as is absolutely necessary to maintain safety and operational

readiness pending accomplishment of the changes required.

(iii) Guidelines. This part shall not be used as sole

A-31

justification for either the acquisition or the retention of owned

interests beyond the minimum required to protect the Government.

(A) Necessary rights to land within the defined compatible

use area may be obtained by purchase, exchange, or donation, in

accordance with all applicable laws and regulations.

(B) If fee title is currently held or subsequently acquired

in an area where compatible uses could be developed and no

requirement for a fee interest in the land exists except to prevent

incompatible use, disposal actions shall normally be instituted. Only

those rights and interests necessary to establish and maintain

compatible uses shall be retained. Where proceeds from disposal

would be inconsequential, consideration may be given to retaining

title.

closely the cost of fee title, consideration shall be given to whether

acquisition of fee title would be to the advantage of the Government.

determined to be necessary for the Federal Government to acquire

interests in land, acareful assessment of the type of interest to be

acquired is mandatory. § 256.9 contains a listing of possible

interests which should be examined for applicability.

(d) Environmental impact statements.

(1) Any actions taken with respect to safety of flight,

accident hazard, or noise which involve acquisition of interests in

land must be examined to determine the necessity of preparing an

environmental impact statement in accordance with DOD Directive

6050.1, "Environmental Considerations in DOD Actions," March

19, 1974 (32 CFR Part 214).

A-32

(2) All such environmental impact statements must be forwarded

to appropriate Federal and local agencies for review in accordance

with DOD Directive 6050.1 (32 CFR Part 214).

(3) Coordination with local agencies will be in accordance with

OMB Circular A-95.

§ 256.5 The air installation compatible use program.

(a) The Secretaries of the Military Departments will develop,

implement and maintain a program to investigate and study all air

installations in necessary order of priority to develop an Air

Installation Compatible Use Zone (AICUZ) program for each air

installation consistent with § 256.4. AICUZ studies which contain

an analysis of land use compatibility problems and potential solutions

shall be developed and updated as necessary. As aminimum, each

Study shall include the following:

(1) Determination by detailed study of flight operations, actual

noise and safety surveys ifnecessary, and best available projections

of future flying activities, desirable restrictions on land use due to

noise characteristics and safety of flight;

(2) Identification of present incompatible land uses;

(3) Identification ofland that if mappropriately developed would

be incompatible;

(4) Indication of types of desirable development for various land

tracts;

(5) Land value estimates for the zones in question.

(6) Review of the airfield master plans to ensure that existing and

A-33

future facilities siting is consistent with the policies in this part.

(7) Full consideration of joint use of air installations by activities

of separate Military Departments whenever such use will result in

maintaining operational capabilities while reducing noise, real estate

and construction requirements.

(8) Recommendations for work with local zoning boards,

necessary minimum programs of acquisition, relocations, or such

other actions as are indicated by the results of the Study.

(b) Procedures. In developing AICUZ Studies the Secretaries of

Military Departments shall:

(1) Follow the review and comment procedures established

under OMB Circular A- 95;

(2) Ensure that appropriate environmental factors are

considered; and

(3) Ensure that other local, State or Federal agencies engaged

in land use planning or land regulation for a particular area have an

opportunity to review and comment upon any proposed plan or

significant modification thereof.

of the Military Departments shall develop procedures for

coordinating AICUZ Studies with the land use planning and

regulatory agencies in the area. Developing compatible land use

plans may require working with local governments, local planning

commissions, special purpose districts, regional planning agencies,

state agencies, state legislatures, as well as the other Federal

agencies. Technical assistance to local, regional, and state agencies

A-34

to assist them in developing their land use planning and regulatory

processes, to explain an AICUZ Study and its implications, and

generally to work toward compatible planning and development in

the vicinity of military airfields, should be provided.

(d) Property rights acquisition. The AICUZ Study shall serve

as the basis for new land acquisitions, property disposal, and other

proposed changes in Military Departments real property holdings in

the vicinity of military airfields where applicable.

(e) Required approvals. Based on the results of the AICUZ

Studies, each Military Department will prepare recommendations

for individual installations AICUZ programs for approval as follows:

(1) The Secretaries of the Military Departments or their

designated representatives will review and approve the AICUZ

Studies establishing the individual air installation AICUZ

program.

(2) When relocation or abandonment of a mission or an

installation is apparently required, the Secretaries of the Military

Departments will submit the proposed plan for the installation, with

appropriate recommendations, to the Secretary of Defense for

approval.

(3) A time-phased fiscal year plan for implementation of the

AICUZ program in priority order, consistent with budgetary

considerations, will be developed for approval by the Secretaries of

the Military Departments, or their designated representatives.

These plans will serve as the basis for all AICUZ actions at the

individual installations.

(f) Coincident actions. The Secretaries of the Military

A-35

Departments will also take action to assure in accordance with §

256.4 (a) and (b) that:

(1) As the first priority action in developing an AICUZ program,

full attention is given to safety and noise problems.

(2) Inall planning, acquisition and siting of noise generating

items, such as engine test stands, full advantage is taken of available

alleviating measures, such as remote sites or sound suppression

equipment.

(3) The noise exposure of on-installation facilities and personnel

are considered together with that off the installation.

(4) There is development or continuation with renewed

emphasis, of programs to inform local governments, citizens groups,

and the general public of the requirements of flying activities, the

reasons therefore, the efforts which may have been made or maybe

taken to reduce noise exposure, and similar matters which will

promote and develop a public awareness of the complexities of air

installation operations, the problems associated therewith, and the

willingness of the Department of Defense to take all measures

possible to alleviate undesirable external effects.

(g) Responsibilities for the acquisition, management and disposal

of real property are defined in DOD Directive 4165.6, "Real

Property; Acquisition, Management and Disposal," September 15,

1955 (20 FR 7113).

(h) The Deputy Assistant Secretary of Defense (Installations and

Housing) will examine the program developed pursuant to this Part,

and from time to time review the progress thereunder to assure

conformance with policy.

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§ 256.6 Runway classification by aircraft type.

Class A runways

S-2, VC-6, C-1, C-2, TC-4C, U-i0, U-11, LU-16, TU-16, HU-

16, C-7, C-8, C-12, C- 47, C-117, U-21, QU-22, E-1, E-2, O-1,

U-1, U-3, U-6, U-8, U-9, O-2, OV-1, OV- 10, T-28, T-34, T-

41, T-42.

Class B runways

A-1, A-3, A-4, A-5, A-6, F-106, F-5, F-15, F-18, S-3, C-121,

EC-121, WC-121, C- 123, C-130, A-7, A-38, AV-8, P-2, P-3,

T-29, T-33, T-37, T-39, T-1, HC-130B, C-131, C-140, C-5A,

KC-97, F-9, F-14, F-4, F-8, F-111, T-2, T-38, B-52, B-57, B-

57F, C-124, EC-130E, HC-130, C-135, VC-137, YF-12, SR-

71, F-100, F-101, F- 102, B-66, C-9, C-54, C-97, C-118, C-

141, KC-135, EC-135, RC-135, U-2, F-104, F-105, C-119.

[42 FR 13022, Mar. 8, 1977]

§ 256.7 Accident potential zone guidelines.

Class A Runway - AJl dimensions

in feet

TE cea: Zone APZ I |APZ 111000

Runway

+ 3000 — +-2500-4- 2500-

Class B Runway

a -.... eae Ba *

Runway |

-3000- '- 5000 - - 7000 -

Width of clear zone may be based on individual service analysis of highest

accident potential area for specific runway use and varied based on

acquisition constraints. 3000 foot wide clear zone is desirable for new

construction.

Da deal Memes 2 Gt Pele k wea nw oi

lin as ik BOs Ri RE el I cd

pide ante

> eh eh

A-37

§ 256.8 Land use compatibility guidelines for accident

potential.

ZONES AND FOOTNOTES-LAND USE CATEGORY

[See footnotes at end of table]

Compatibility’

Clear zone APZI

Residential:

| EERO TD No No

I baie eittinssscecsiens do do

Multifamily dwellings .............. do do

GROUP GUATEES..........0..0.20.s00cc000e0 do do

Residential hotels ..................... do do

Mobile home parks or courts... do do

Other residential ....................... do do

Industrial manufacturing:?

Food and kindred products ....... do do

Textile mill products ................ do do

PE aanttiiinidbenipiersstshisesens do do

Lumber and wood products ...... do Yes

Furniture and fixtures ............... do do

Paper and allied products .......... do do

Printing, publishing ................... do do

Chemicals and allied products... do No

Petroleum refining and related

PN iiiacsandicsstannstonseictnxes do do

Rubber and miscellaneous

RI cichcescthaisanicncensce do do

Stone, clay, and glass products .. do Yes

APZ I

Yes.”

No.

Do.

Yes.

Do.

No.

Do.

No.

Do.

Yes.

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Compatibility!

Clear zone APZI APZIi

Primary metal industries ............ do do Do.

Fabricated metal products ........ do do Do.

Professional, scientific and

controlling instruments........... do No No.

Misc. manufacturing ................ do Yes Yes.

Transportation,

communications and utilities:*

Railroad, rapid rail transit

I cee cesisadecsictcniincsnens Yes Yes* Yes.

Highway and street ROW ........ do Yes Do.

PND GTI voscinssneicsesissanssneien No do Do.

COMIROIIIINE oiiccsncccescsscessens Yes do Do.

II ot ere ea cai eet do Yes‘ Do.

Other transportation,

communications and utilities.. do Yes Do.

Commercial/retail trade:

Wholesale trade ...................0044

Building materials-retail ..........

General merchandise-retail ......

Automotive, marine,

aviation-retail.................::.see

Apparel and accessories-retail...

Furniture, homefurnishing-

TE i scsiciczebloscislaniocenvenimaniees

Eating and drinking places .......

Other retail trade ......................

A-39

Compatibility’

Clear zone APZI APZ I

Personal and business

services:>

Finance, insurance and

TE i iicishaseccaksesscorecrcixontns do do Do.

Personal Service ...............00004 do do Do.

BusSIMesS SETVICES..............0000000 do do Do.

PROPOR GOT VIGEE. 0....ccscicsccsseccscses do Yes Do.

Professional services................. do No Do.

Contract construction services.. do Yes Do.

Indoor recreation services ........ do No Do.

CHEE BUT WIOOD iseiiescnciccansoscsecsass do do Do.

Public and quasi-public services:

) Government Service .............00.. do do Yes.°

Educational services ................ No No No.

| Cultural activities .................... do do Do.

| Medical/other health services... do do Do.

| I viiiccsecisaicnnstiensocsins do Yes® Yes.°

| Nonprofit organization

including churches.................. do No No.

Other public and quasi-public

iia cisttniiisnchentntiteeadecean do do Yes.

Outdoor recreation:

Playground's neighboring parks do do Yes.

Community and regional parks.. do Yes’ Yes.’

A-40

Compatibility’

Clear zone APZI APZII

Water based recreational areas.. do do Do.

Resort and group camps ............ do No No.

Entertainment assembly ............ do do Do.

Other outdoor recreation ........... do Yes’ Yes.

Resource production and

extraction and open land:

Aa vcciicccnsissnnmmasens Yes Yes Do.

Livestock farming, animal

i icciicacnamanen: No do Do.

Forestry activities’?.................. No” Yes Do.

Fishing activities and related

UNNEE™ sscssivcdsinienidiieiemaae No” Yes'* Do.

Mining activities ..................06 No Yes Do.

Permanent open space ............ Yes do Do.

Wet GO wii dics do do Do.

Footnotes.

1.A “Yes” or “No” designation for compatible land use is to be

used only for gross comparison. Within each, uses exist where

further definition may be needed as to whether it is clear or normally

acceptable/unacceptable owing to variations in densities of people

and structures.

2. Suggested maximum density 1-2 DU/AC, possibly increased

under a planned unit development where maximum lot covered less

than 20 percent.

3. Tactics to be considered: Labor intensity, structural

coverage, explosive characteristics, air pollution.

4. No passenger terminals and no major above ground

transmission lines in APZ I.

mot. «Jie Gigt.ih

A-41

5. Low intensity office uses only. Meeting places, auditoriums,

etc., not recommended.

6. Excludes chapels.

7. Facilities must be low intensity.

8. Clubhouse not recommended.

9. Concentrated rings with large classes not recommended.

10. Includes livestock grazing but excludes feedlots and

intensive animal husbandry.

11. Includes feedlots and intensive animal husbandry.

12. No structures (except airfield lighting), buildings or above

ground utility/communication lines should be located in the clear

zone. For further runway safety clearance limitations pertaining to

the clear zone see AFM 86-6 TM 5-803-4 and NAVFAC P-80.

13. Lumber and timber products removed due to

establishment, expansion or maintenance of clear zones will be

disposed of in accordance with DoD Instruction 4170.7, “Natural

Resources-Forest Management,” June 21, 1965 (32 CFR 233) and

DoD Instruction 7310.1, “Accounting and Reporting for Property

Disposal and Proceeds from Sale of Disposable Personal Property

and Lumber or Timber Products,” July 10, 1970.!

14. Includes hunting and fishing.

15. Controlled hunting and fishing may be permitted for the

purpose of wildlife control.

§ 256.9 Real estate interests to be considered for clear

zones and accident potential zone.

(a) The right to make low and frequent flights over said land and

to generate noises associated with:

(1) Aircraft in flight, whether or not while directly over said land,

(2) Aircraft and aircraft engines operating on the ground at said

base, and,

A-42

(3) Aircraft engine test/stand/cell operations at said base.

(b) The right to regulate or prohibit the release into the air of any

substance which would impair the visibility or otherwise interfere

with the operations of aircraft, such as, but not limited to, steam,

dust and smoke.

indirect (reflective), which might interfere with pilot vision.

(d) The right to prohibit electrical emissions which would interfere

with aircraft and aircraft communications systems or aircraft

navigational equipment.

(e) The right to prohibit any use of the land which would

unnecessarily attract birds or waterfowl, such as, but not limited to,

operation of sanitary landfills, maintenance of feeding stations or the

growing of certain types of vegetation attractive to birds or

waterfowl.

(f) The right to prohibit and remove any buildings or other non-

frangible structures.

(g) The right to top, cut to ground level, and to remove trees,

shrubs, brush or other forms of obstruction which the installation

commander determines might interfere with the operation of aircraft,

including emergency landings.

(h) The right of ingress and egress upon, over and across said land

for the purpose of exercising the rights set forth herein.

(i) The right to post signs on said land indicating the nature and

extent of the Government's control over said land.

A-43

(j) The right to prohibit land uses other than the following:

(1) Agriculture.

(2) Livestock grazing.

(3) Permanent open space.

(4) Existing water areas.

(5) Rights of way for fenced two lane highways, without

sidewalks or bicycle trails and single track railroads.

(6) Communications and utilities rights of way, provided all

facilities are at or below grade.

(k) The right to prohibit entry of persons onto the land except in

connection with activities authorized under paragraphs (a), (b), (c),

and (f) of this section.

(1) The right to disapprove land uses not in accordance with §

256.8.

(m) The right to control the height of structures to insure that they

do not become a hazard to flight.

(n) The right to install airfield lighting and navigational aids.

A-44

§ 256.10 Air installations compatible use zone noise

descriptors.

(a) Composite Noise Rating (CNR) and Noise Exposure Forecast

(NEF) values as previously required by Sections IIL, IV., and V.

of DOD Instruction 4165.57, "Air Installations Compatible Use

Zones," July 30, 1973' will no longer be used.

(b) Where CNR 100 (or the quietest boundary of CNR Zone 2 if

otherwise computed) or NEF 30 would previously have been used,

data shall be collected sufficient to permit computation of Ldn 65

noise contours and these noise contours shall be plotted on maps

accompanying AICUZ studies.

otherwise computed) or NEF 40 would previously have been used,

data shall be collected sufficient to permit computation of Ldn 75

noise contours and these noise contours shall be plotted on maps

accompanying AICUZ studies.

(d) Where previous st dies have used CNR or NEF, for meters

of policy, noise planning and decisionmaking, areas quieter than Ldn

65 shall be considered approximately equivalent to the previously

used CNR Zone 1 and to areas quieter than NEF 30. The area

between Ldn 65 and Ldn 75 shall be considered approximately

equivalent to the previously used CNR Zone 2 and to the area

between NEF 30 and NEF 40. The area of higher noise than Ldn

75 shall be considered approximately equivalent to the previously

used CNR Zone 3 and to noise higher the NEF 40. The

procedures shall remain in effect only until sufficient data to compute

' Filed as part of original. Copies available in the Office of the Assistant

Secretary of Defense (Installations and Logistics)-IO, Washington, D.C.

20301.

A-45

land values can be obtained.

(e) When computing helicopter noise levels using data collected

from meters, a correction of +7db shall be added to meter readings

obtained under conditions where blade slap was present until and

unless matters are developed which more accurately reflect true

conditions.

(f) Noise contours less than Ldn 65 or more than Ldn 80 need not

be plotted for AICUZ studies.

(g) Since CNR noise levels are not normally directly convertible to

Ldn values without introducing significant error, care should be

exercised to assure that personnel do not revise previous studies by

erroneously relabeling CNR contours to the approximately

equivalent Ldn values.

(h) Where intermittent impulse noises are such as are associated

with bombing and gunnery ranges are of importance such noises will

be measured using standard "C" weighing of the various frequencies

to insure a description most representative of actual human

response.

§ 256.11 Effective date and implementation.

This part is effective immediately. Two copies of implementing

regulations shall be forwarded to the Assistant Secretary of Defense

(Installations and Logistics) within 90 days after publication of final

rules.

A-46

ORDINANCE NO. 155-94

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY

OF WICHITA FALLS, TEXAS, AMENDING ARTICLE 1,

SECTIONS 3-16 THROUGH 3-36 OF THE CODE OF

ORDINANCES IN THEIR ENTIRETY; AMENDING

SECTION 6400 OF THE ZONING ORDINANCE TO

INCLUDE SUCH AMENDMENTS IN THE ZONING

ORDINANCE; PROVIDING FOR THE APPLICATION AND

ENFORCEMENT OF BUILDING CODES AS APPLIED TO

THE CITY OF WICHITA FALLS FOR AREAS OUTSIDE THE

CITY LIMITS OF WICHITA FALLS, BUT WITHIN THE 65

DECIBEL CONTOUR OF A NOISE ZONE AS SHOWN IN

THE MOST RECENT AICUZ STUDY FOR SHEPPARD AIR

FORCE BASE; PROVIDING A REPEALER CLAUSE;

DECLARING A STATE OF EMERGENCY; AND FINDING

AND DETERMINING THAT THE MEETING AT WHICH

THIS ORDINANCE WAS DISCUSSED WAS OPEN TO THE

PUBLIC AS REQUIRED BY LAW.

WHEREAS, the City Council has accepted a Final Report

from the Airport Zoning Board as required by Chapter 241 of the

Local Government Code; and,

WHEREAS, the adoption of this ordinance helps to protect

the health, safety and general welfare of those living or working on

or around Sheppard Air Force Base; and,

WHEREAS, said Report is in conformance with the intent

of the City of Wichita Falls as a viable social and economic

resource for the City and the North Central Texas area; and,

WHEREAS, amending Article IL, Sections 3-16 through 3-

36 of the Code of Ordinances further accomplishes this intent.

A-47

NOW, THEREFORE, BE IT ORDAINED BY THE

CITY COUNCIL OF THE CITY OF WICHITA FALLS,

TEXAS THAT:

Section 1. Article II, Sections 3-16 through 3-36 of the

Code of Ordinances is amended in its entirety and hereby included

in the Zoning Ordinance as shown in Attachment “A.”

Section 2. The City Council of the City of Wichita Falls

orders that building codes by (sic) applied and enforced in that area

outside of the City limits, but limited to that area shown within the 65

decibel noise contour as shown in the latest AICUZ study for

Sheppard Air Force Base.

Section 3. All ordinances in conflict herewith are hereby

repealed, specifically Ordinance No. 100-82, codified as Chapter

3, Article II of the Code of Ordinances.

Section 4. This ordinance is declared to be an emergency

measure and shall become effective immediately upon its

passage.

Section 5. It is hereby officially found and determined that

the meeting at which this ordinance was passed was open to the

public as required by law.

PASSED and APPROVED this 20th day of December, 1994.

S/ Mayor of the City of Wichita Falls

Attest:

City Clerk

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ATTACHMENT A

6400 AIRPORT ZONING

6405 PURPOSE

The purpose of the Airport Zoning provision is to ensure protection

of the utility of Sheppard Air Force Base/Wichita Falls Municipal

Airport and the public investment by the regulation of land uses in

the vicinity of Sheppard Air Force Base/Wichita Falls Municipal

Airport where it has been determined that Sheppard Air Force

Base is an essential part of the City and surrounding cities and

counties.

It is also the purpose of this provision to protect the health, safety,

and general welfare of the public where it is recognized that

obstructions, aircraft accidents, and excessive noise have the

potential for endangering or harming the lives and/or property of

users or occupants of land in the vicinity of Sheppard Air Force

Base/Wichita Falls Municipal Airport.

6410 APPLICABILITY

Airport Zoning regulations shall apply to all of the incorporated

areas of the City of Wichita Falls and unincorporated areas which

are located within a Accident Potential Zone, Noise Zone or Height

Restriction Zone as described herein. The use of all land and any

buildings or structures located upon the land, and the height,

construction, reconstruction, alteration, expansion or relocation of

any building or structure upon the land shall conform to all

regulations applicable to this section. No land, building, structure or

premise shall be constructed and/or used for any purpose or in any

manner other than is permitted in this section.

The Airport Zoning regulation shall be in accordance with

A-49

prescribed regulations contained in Chapter 241 of the Local

Government Code.

6415 AIRPORT ZONING BOARD

The Planning and Zoning Commission for the City of Wichita Falls

shall be responsible for all duttes and powers granted to an Airport

Zoning Board as required by Chapter 241 of the Local Government

Code.

6420 PERMITTED USES

Refer to the Land Use Compatibility Table included herein for

permitted, controlled, and prohibited land uses in accordance with

the latest AICUZ study for Sheppard Air Force Base.

6425 DEFINITIONS

For the purpose of this provision, the following definitions shall

apply to the interpretation of Section 6400:

AICUZ - Air Installation Compatible Use Zone.

Accident Potential Zone I(APZ I) - Anareaof accident potential

and noise located beyond the Clear Zone of each runway.

Accident Potential Zone II (APZ II) - An area of accident potential

and noise located beyond APZ I of each runway.

Airport - Means the Sheppard Air Force Base/Wichita Falls

Municipal Airport.

Airport Elevation - Means the established elevation of the highest

point on the usable landing area measured in feet from mean sea

level. This elevation has been established at the Sheppard Air Force

Base/Wichita Falls Municipal Airport as 1,015 feet above mean sea

A-50

level.

Airport Hazard - Means any structure or use of land which

obstructs the airspace required for the flights of aircraft or which

obstructs or interferes with the control or tracking and/or data

acquisition in the landing, taking off or flight at an airport or at any

installation or facility relating to flight and tracking and/or data

acquisition of the flight craft; or which is hazardous, interfering with,

or obstructing such landing, taking off or flight of aircraft; or which

is hazardous to or interferes with tracking and/or data acquisition

pertaining to flight and flight vehicles.

Airport Hazard Area - Means any area of land or water upon which

an airport hazard might be established if not prevented as provided

herein.

Centerline - means a line extending through the midpoint of each

end of a runway.

Compatible Land Use - Includes any use of land adjacent to an

airport that will protect the owners, occupants or users of the land

from levels of noise or vibrations created by the operations of the

airport, including the taking off and landing of aircraft, that may

endanger the health, safety or welfare of the owners, occupants or

users of the land and protect airport users from airport hazards.

Hazard to Air Navigation - An obstruction determined to have a

substantial adverse effect on the safe and efficient utilization of

navigable airspace.

Height - For the purpose of determining the height limits in all zones

set forth in this provision and shown in the AICUZ study, the datum

shall be mean sea level elevation unless otherwise specified.

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Instrument Runway - Means existing or planned runway(s) of at

least four thousand (4,000) feet for which there is or is planned to

be an instrument landing procedure published by a defense agency

of the federal government or by the Federal Aviation

Administration.

Landing Area - Means the surface area of the airport used for

landing, take-off or taxiing of aircraft.

Nonconforming Use - Any structure or use of land which was

inconsistent with these provisions on October 31, 1982.

Obstruction - Any structure or other object, including a mobile

object, which exceeds a limiting height set forth in this

provision.

Person - Means an individual, firm, partnership, corporation,

company, association, joint stock association or body politic and

includes a trustee, receiver, assignee, administrator, executor,

guardian or other representative.

Primary Surface - These surfaces are set established herein. (The

elevation of any point on the primary surface is the same as the

elevation of the nearest point on the runway centerline.)

Runway - A defined area on an airport prepared for landing and

take-off of aircraft along its length.

Structure - An object, including a mobile object, constructed or

installed by man, including, but not limited to buildings, towers,

cranes, smokestacks, earth formations and overhead transmission

lines.

A-52

6430 ACCIDENT POTENTIAL ZONES

Accident Potential Zones are established within the area of the

Sheppard Air Force Base/Wichita Falls Municipal Airport for the

purpose of regulating the development of areas which possess an

accident potential hazard so as to promote compatibility between

the airport and the surrounding land uses, protect the airport from

incompatible encroachment, and promote the health, safety and

general welfare of property users.

A. Zone Boundaries. The boundaries of said zones are

established as shown on the map included in the latest AICUZ study

for Sheppard Air Force Base. Accident Potential Zones are located

beyond the Clear Zone at the end of the runways and are:

1. For runway 17/35, Accident Potential Zones I and

II shall be one thousand (1,000) feet wide and two thousand five

hundred (2,500) feet long.

é. For runways 15R/C/L and 33L/C/R, Accident

Potential Zone I(APZ I) shall be three thousand (3,000) feet wide

and five thousand (5,000) feet long; Accident Potential Zone I

(APZ II) shall be three thousand (3,000) feet wide and seven

thousand (7,000) long.

B. Compatible Uses. Compatible uses within each Accident

Potential Zone are established as shown in the latest AICUZ study

for Sheppard Air Force Base. Only compatible uses will be

allowed.

6435 NOISE ZONES

For the purpose of regulating the development of areas which

possess a noise hazard to certain land uses, so as to promote

compatibility between the airport and the surrounding land uses,

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protect the airport from incompatible encroachment, and promote

and protect the health, safety and general welfare of property users,

Noise Zones are established within the area of the Sheppard Air

Force Base/Wichita Falls Municipal Airport.

A. Zone Boundaries. The boundaries of said zones are

established as shown on the inap included in the latest AICUZ study

for Sheppard Air Force Base. Noise Zones are located within the

65db or greater noise contour as shown in the latest AICUZ study

for Sheppard Air Force Base:

B. Compatible Uses. Compatible uses within the Noise Zone

are established as shown in the latest AICUZ study for Sheppard

Air Force Base. Only compatible uses will be allowed.

6440 HEIGHT RESTRICTION ZONES

In order to carry out the provisious included herein as it pertains to

height restrictions, there are established certain height restriction

zones which include all of the land lying beneath the Approach-

Departure Clearance Surface, Inner Horizontal Surface, Conical

Surface, Outer Horizontal Surface, and Transitional Surface as they

apply to Sheppard Air Force Base/Wichita Falls Municipal Airport.

Such zones and height restrictions are shown in the most recent

AICUZ study of Sheppard Air Force Base. The various zones are

established and defined as follows:

A. Zones Related to Runways

1. Primary Zone (A Zone). All of the land area lying

beneath a Primary Surface, which is a surface on the ground

centered lengthwise of the runway and extending two hundred (200)

feet beyond each end of that runway. The width of the primary

surfaces are:

A-54

a. For runway 17/35, one thousand (1,000) feet.

b. For runways 15R/33L, 15C/33C, and 15L/33R, two

thousand (2,000) feet.

No structure is permitted within the Primary Zone (A

Zone) as described herein.

2. Clear Zone (B Zone). All of the land area lying

beneath a Clear Zone Surface, which is a surface on the ground

beginning at the runway end and symmetrical with the runway

centerline extended. The width and length of the clear zone surfaces

are:

a. Forrunway 17/35, one thousand (1,000) ‘eet wide and

three thousand (3,000) feet long.

b. Forrunways 15R/33L, 15C/33C, and 151/33R., three

thousand (3.900) feet wide and three thousand (3,00) feet long.

3. Approach-Departure Clearance Zone (C & D

Zones). All of the land area lying under an Approach-Departure

Clearance Surface, which is an inclined plane or :ombination

inclined and horizontal plane, symmetrical abou! the runway

centerline extended. The inclined plane flares outwari and upward

from the primary surface, having the same width a: the primary

surface, and begins with the centerline elevation of the runway end.

The slope ratio and dimensions of the inclined planes, (C ZONE)

and dimensions of the horizontal planes, (D ZONE) are as

follow:

a. Runway 17/35, one (1) foot in heightfor each forty

(40) feet in horizontal distance beginning at the end cf the primary

A-55

surface centerline elevation of the runway end. The runway end

centerline elevation is 1,015 MSL feet for Runway 35. The surface

extends to a point ten thousand (10,000) feet from the end of the

primary surface with an outer width of two thousand five hundred

(2,500) feet. Runway 17 does not have an Approach Surface and

Runway 35 does not have a Departure Surface.

b. Runway 15R/33L, one(1) foot in height for each

fifty (50) feet in horizontal distance beginning at the end of the

primary surfaces and at the centerline elevation of the runway end.

The runway end centerline elevation is 998 MSL feet for runway

15R and 1,000 MSL feet for 33L. The surfaces extend until they

reach an elevation of 500 feet above established airfield elevation

(1,515 MSL). They then continue horizontally at this elevation to a

point fifty thousand (50,000) feet from the point of beginning. The

outer width is sixteen thousand (16,000) feet.

c. Runway ISC/33C (formerly 15L/33R), one (1) foot

in height for each fifty (50) feet in horizontal distance beginning at

the end of the primary surfaces and at the centerline elevation of the

runway end. The runway end centerline elevation is 1,003 MSL feet

for Runway 15C and 989 MSL feet for Runway 33R. The surfaces

extend until they reach an elevation of 500 feet above established

airport elevation (1,515 MSL). They then continue horizontally at

this elevation to a point fifty thousand (50,000) feet from the point

of beginning. The outer width is sixteen thousand (16,000) feet.

d. Runway 15L/33R, one (1) foot in height for each

fifty (50) feet in horizontal distance beginning at the end of the

primary surface centerline elevation of the runway end. The runway

end centerline is 1,021 MSL feet for runway 15L and 996.9 MSL

for rnway 33R. The surfaces extend until they reach an elevation

of 500 feet above established airport elevation (1,515 MSL). They

A-56

then continue honzontally at this elevation to a point fifty thousand

(50,000) feet from the point of beginning. The outer width is sixteen

thousand (16,000) feet.

B. Zones Reiated to Airport Reference Points

i, Inner Horizontal Zone (E ZONE). All of the land

lying beneath the Inner Horizontal Surface, which is an oval-shaped

plane at a height of one hundred fifty (150) feet above the

established airfield elevation (1,165 MSL). It is constructed by

scribing an arc with a radius of seven thousand five hundred (7,500)

feet about the centerline at each end of each runway and

interconnecting these arcs with tangents.

4 Conical Zone (F ZONE). All of the land area lying

beneath the Conical Surface, which is an inclined plane that extends

from the periphery of the inner horizontal surface outward and

upward at a slope of twenty (20) to one (1) for a horizontal distance

of seven thousand (7,000) feet to a height of five hundred (500) feet

above the established airfield elevation (1,515 MSL).

3. Outer Horizontal Zone (G ZONE). All of the land

area lying beneath the Outer Horizontal Surface, which is an oval-

shaped plane located 500 feet above the established airport

elevation (1,515 MSL), extending outward from the outer periphery

of the conical surface for a horizontal distance of thirty thousand

(30,000) feet.

4. Transitional Zone (H ZONE). All of the land area

lying beneath a Transitional Surface, which are inclined planes that

connect the primary surface and the approach-departure clearance

surfaces to the inner horizontal surface, conical surface, outer

horizontal, or other transitional surfaces. The slope is one (1) foot

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in height for each seven (7) feet in horizontal distance outward and

upward at right angles to the runway centerline and runway

centerline extended. To determine the elevation for the beginning of

the transitional surface slope at any point along the lateral boundary

of the primary surface, draw a line from the point, perpendicular to

the runway centerline or to the runway centerline extended. The

elevation of the runway or the runway centerline extended at that

intersection is the elevation for the beginning of the 7 to 1 slope. The

elevation of the point is the distance minus one-half (1/2) the width

of the primary surface and divided by seven (7).

Except as otherwise provided in this provision, no structure or

obstruction shall be erected, altered or maintained in any zone

created by this provision to a height in excess of the applicable

height of the surface used to describe such zone.

6445 ADDITIONAL USE RESTRICTIONS

Notwithstanding any other provisions, no use shall be made of land

within any zone established herein in such a manner as to create

electrical interference with navigational signals or radio

communication between the airport and aircraft, make it difficult for

pilots to distinguish between airport lights and others, result in glare

in the eyes of pilots using the airport, impair visibility in the vicinity

of the airport, create bird strike hazards, or otherwise endanger or

interfere with the safe landing, taking off or maneuvering of aircraft

intending to use the airport.

6450 NONCONFORMING USES

A. Regulations not Retroactive. The regulations prescribed by

this provision shall not be construed to require changes in land use

or the removal, lowering or other change or alteration of any

structure established prior to the regulation as of October 31, 1982

or otherwise interfere with the continuance of any nonconforming

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use.

B. Marking and Lighting. Notwithstanding the preceding

provision of this provision, the owner of any nonconforming

structure is hereby required to permit the installation, operation and

maintenance thereon of such markers and lighting as shall be

deemed necessary by Sheppard Air Force Base and/or Wichita

Falls Municipal Airport to indicate to the operators of aircraft in the

vicinity of the airport, the presence of such airport hazards. Such

markers and lights shall be installed, operated and maintained at the

expense of the City of Wichita Falls and/or Sheppard Air Force

Base.

C. Reconstruction. Anynonconforming use which is damaged

or destroyed by fire, flood, explosion, wind, earthquake, war, riot,

or other calamity may be reconstructed and used as it was before

such happening.

6455 PERMITS

A. New Construction. A permit shall be required to construct

a structure in any Accident Potential Zone, Noise Zone, or Height

Restriction Zone established by this provision as specifically

provided herein. Each application for a permit shall indicate the

location, height, and if applicable, use of the structure, with sufficient

particularity to enable it to be determined whether the resulting

structure would conform to the regulations herein prescribed. If such

determination is in the affirmative, the permit shall be granted. No

permit for a structure inconsistent with these provisions shall be

granted unless a variance has been approved in accordance with

Subsection C of this section.

R. In the limits of the Accident Potential Zones (APZ

I & Il), apermit shall be required for any structure. Such permits

A-59

shall be issued when the proposed use of the structure is permitted,

and the vertical height of the structure above the ground does not

exceed the height limits prescribed herein.

a) In the area lying inside the Accident Potential Zones

(APZ 1 & Il), a permit shall be required for any use or structure.

Such permits shall be issued when the vertical height of the

structure, above the ground, does not exceed the height limits

prescribed herein and is found to be a compatible use as defined

herein.

b) In the area lying outside the Accident Potential

Zones (APZI & Il) and within a height restriction zone, a permit

shall be required for any use or structure. Such permits shall be

issued when the vertical height of the structure, above the ground,

does not exceed the height limits prescribed herein and is found to

be a compatible use as defined herein.

2. In the area within the 65db or greater noise contour

as shown in the latest AICUZ study, a permit shall be required for

any use or structure as identified in the Land Use Compatibility

Table included herein as requiring noise attenuation. Such permits

shall be issued when the Building Official has approved noise

attenuation measures on those uses requiring attenuation as

identified herein.

No Certificate of Occupancy (CO) shall be issued for

noise attenuation measures as required herein. For residential land

uses required to attenuate, no water sales by the City or appropriate

water districts or supply corporations shall be permitted until

compliance is realized through inspection and approval of the

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Building Official.

Noise attenuation measures as required herein, and as

approved by the Building Official, shall be installed and maintained

at the same level of attenuation as required by this provision.

B. Existing Uses.

l. No permit shall be granted that would allow the

establishment or creation of any airport hazard or permit a

nonconforming use or structure to be made higher or become a

greater hazard to air navigation, than it was on the effective date of

this ordinance.

2. No permit shall be granted that would allow the

expansion of a use not herein permitted within the Noise Zone

unless said use adheres to attenuation measures as required.

C. Variances. Any person desiring to erect or increase the

height of any structure, or use his property contrary to the

regulations prescribed in this provision may apply to the Board of

Adjustment for a variance from such regulations in question. The

application for variance from a height restriction shall be

accompanied by a determination from the Federal Aviation

Administration as to the effect of the proposal on the operation of

air navigation facilities and the safe, efficient use of navigable

airspace. A variance request shall be processed in accordance with

Section 7300 of this ordinance.

gunsheny Pai aches eaunneniadit by the Director of

Community Development or his designee or the Board of

Adjustment to effectuate the purposes of this provision and is

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reasonable under the circumstances, be so conditioned as to require

the owner of the structure in question to install, operate and

maintain, at their expense, such markings and lights as may be

necessary.

6460 ENFORCEMENT

It shall be the duty of the Director of Community Development or

his designee to administer and enforce the regulations prescribed

herein. Applications for permits shall be made to the Director of

Community Development or his designee. Applications required by

this provision to be submitted to the Director of Community

Development or his designee shall be promptly considered and

granted or denied by him. In the event that the Director of

Community Development or his designee refuses to grant the

application, the applicant may appeal such decision to the Board of

Adjustment

Applications for variances shall be made to the Board of

Adjustment by first filing said application for variance with the

Director of Community Development or his designee who shall

forthwith transmit said application to the Board of Adjustment for

determination.

6465 AIRPORT BOARD OF ADJUSTMENT

An Airport Board of Adjustment shall be appointed comprised of

both residents of the City of Wichita Falls, and residents located

outside of the City but within the area affected by this ordinance,

and according to the provisions set forth in the Local Government

Code. The actions and procedures of the Airport Board of

Adjustment shall be those as required under Chapter 24 1.032 of

the Local Government Code as amended.

A-62

6470 LAND USE COMPATIBILITY TABLE

Accident Potential Zones | Noise Zones (dB)

Land Use Clear | APZ | APZ | 65- | 70- | 75- | 80+

Zone I II 70 75 | 80

RESIDENTIAL

Single-Family | N N Y, Ay, | Bu N N

Detached

Single-Family | N N N A,, | Bi N N

Attached

Duplex N N N An ” N N

Apartments N N N Ai - N N

Group N N N An - N N

Quarters

Hotels/ N N N Ay, | Bi N N

Motels

Mobile/Mfg. N N N N N N N

Homes

Other N N N, |A; | Bu N N

Residential

MANUFACTURING

Food/ N N, Y Y You i ¥n 1 Yu

Kindred Prods

Products

Apparel/Sim- N N N, = Yn Yis Y¥.

ilar Products

Land Use Clear | APZ | APZ | 65- | 70- | 75- | 80+

Zone I II 70_ 175 | 80

Lumber/Wood | N Y; Y + Yo [Yn | *%n

Products

Furniture and | N Y, Y T §¥n tila ft Sa

Fixtures

Paper/Allied N Y; Y Y Ye [¥n 1 Yc

Products

Printing, Pub- | N Y; Y ¥ i¥6 iYa | Ye

lishing, etc.

Chemical and | N N |N, |Y |¥, /Y¥3 | Yu

Allied Prods.

Petrol refining | N N Y ¥ tvs ite | te

& related ind.

Rubber and N N, N, Y i¥4 i ¥e 1 Be

Plastic

Stone, Clay N N, Y YY t¥e ite ft Se

Glass Prods.

Primary metal | N N, T £2 ta t 30 ft 3m

industry

Fabricated N N, Y ¥ ote tin 1k Se

metal prods. lets -

Controlling, N N N, | Y [A B N

Optical Prods.

Watch, clock N N N, | Y A B N

related indust.

Misc. Mfg. N Y, | i oe ee bee

Land Use Clear | APZ | APZ | 65- | 70- | 75- | 80+

Zone I I 70 75 80

TRANSPORTATION, COMMUNICATION, UTILITIES

Railroad and N, » a ¥ YY i ¥u 2a tea

Transit

Motor Vehicle | N; Y Y Y §¥4-1 ¥a-t te

Transport

Aircraft N; Y, 7 YY i%6 ita tf ¥e

Transportation

Streets and N, x Y Y T¥e— 1 ¥ I Bu

Highways

Automobile N; Y, = Y -iVa i tu 4 ie

Parking

Communic- N, Yu ¥ Y Aus B,; N

ations

Utilities N; , » 4 kg ¥ t¥a:5 te

Other transp. N; Y, Y Y |A,s | By | N

comm. utility

TRADE

Wholesale N Y; Y Y Yo 1 Y¥n | Yu

Retail bldg N Y, bd = Yo 1Y¥pn 1 Yu

materials.,

hardware,

farm products

Retail, general | N N, Y, |Y A B N

Retail, food N N, | ae ef A B N

Land Use Clear | APZ | APZ | 65- | 70- | 75- | 80+

Zone I II 70 |75 | 80

Retail, auto, N Y; Y, bd A B N

marine, air &

accessories

Retail, home N N, Y, + A B N

furn, & equip.

Eating/drink | N n |nN, |Y |a |B IN

Retail, other N N, Y, Y A B N

SERVICES

Finance, real N N Y, Y A B N

estate, insur.

Personal svcs. | N N Ye Y A B N

Cemetery N Y, | Y, 7 tte tim 1 ¥™

Business svc.

N N

Repair svcs. N : a > 3 DG 2 Pa semme”

Prof. services N Ye » 4 A B N

Hospitals, N N Ax | Bx N N

nursing homes

Other medical | N N N Y A N

Contract con- | N ; a ies b 4 A N

struction svcs.

Govt. services | N N Y; Yx | Ax | Be | N

~| Educ. |, N N N A* | Be | N N

services

Land Use Clear | APZ | APZ | 65- | 70- | 75- | 80+

Zone I II 70 | 75 80

Misc. services | N N, Y; Y A B N

CULTURAL, ENTERTAINMENT AND RECREATIONAL

Cultural N N N, | A* | Bx N N

Activities

Churches N N N, | A* | Bx N N

Nature Exhib. | N Y, | Y |Y* |}N IN IN

Public Assbly | N N ties es 3 N N

Auditoriums, N N N B N N

Concert halls

Outdoor N N N N N N | N

music shell

Amphitheater

Outdoor N N N Yu | ¥n | N N

sports arena

Amusements N N Y, | Y Y N N

Recreational N N Y Yx | Ax | Bk | N

activities, golf

stables, water

Resorts and N N N Yx | Yx N N

group camps

Parks N Y; Y; Yx | Y*x | N N

Other cultural | N Y, Y, | Y* | Yx | N N

entertainment

recreation

Land Use Clear | APZ | APZ | 65- | 70- | 75- | 80+

Zone I II 70 75 80

RESOURCES PRODUCTION AND EXTRACTION

Agricultural, | Yi. y | Y |Ym |Yp> | Yo | ¥

except 21

livestock

Livestock N Y Y i¥a ¥en 1 Yu 1”

farm., animal 21

breeding

Agricultural & | N Y; Y i¥e t¥sn iN N

related activ.

Fishing and N,- Y; Y Y § Y Y

related activ.

Mining and N Y; bs Y Y Y Y

related activ. 7

Other N Y; Y Y Y Y Y

resource

prod./extract

LEGEND

Y (Yes) Land use and related structures are compatible

without restriction.

N(No) Land use and related structures are not compatible

and shall be prohibited.

Y, (yes with restrictions)

~Land--use and related structures generally =—S

compatible; see notes 1 through 21.

A-68

N, (no with restrictions)

See notes 1 through 21.

NLR (Noise Level Reduction)

A, B, or C

A,, B,, or C,

NLR (outdoor to indoor) to be achieved through

incorporation of noise attenuation measures into the

design and construction of the structures.

Land use and related structures generally

compatible; measures to achieve NLR for A(DNL

66-70), B (DNL 71-75), C (DNL 76-80), need to

be incorporated into the design and construction of

structures and approved by the Building

Official.

Land use generally compatible with NLR.

However, measures to achieve an overall noise

level reduction do not necessarily solve noise

difficulties and additional evaluation is warranted.

See appropriate footnotes.

The designation of these uses as “compatible” in

this zone reflects individual federal agencies’ and

program considerations of general cost and

feasibility factors, as well as past community

experiences and program objectives. The Airport

Zoning Board shall review request and be

responsible for issuing necessary permits based

upon its findings.

A-69

NOTES

Maximum density of 2 dwelling units per acre or lot

coverage less than 20 percent, whichever is greater.

Within each land use category, uses exist where further

definition may be needed due to the variation of densities in

people and structures. (See Exhibit A included herein)

No buildings, structures or above-ground utilities shall be

placed within the area defined as the Clear Zone.

No passenger terminals and no major above-ground

transmission lines in APZ I.

Factors to be considered: labor intensity, structural

coverage, explosive characteristics, and air pollution. The

proposed use shall be evaluated by the Director of

Community Development or his designee in conference with

the base AICUZ Officer for Sheppard Air Force Base or

designated personnel.

Low-intensity office uses only. Meeting places,

auditoriums, etc. shall not be permitted. For the purpose of

this provision, low-intensity is defined as an employment

population not to exceed twenty five (25) people per acre

per shift.

Excludes chapels.

Facilities must be low intensity. For the purpose of this

provision, low-intensity is defined as an employment

population not to exceed twenty five (25) people per acre

per shift.

10.

ll.

a2.

13.

A-70

Clubhouse not permitted.

Areas for gatherings of people are not recommended. The

Airport Zoning Board shall be responsible for issuing the

necessary permit based-on its findings.

a. Residential use is discouraged in DNL 66-75dB and

prohibited in DNL above 75 db.

b. Where residential uses are allowed, measures to achieve

outdoor to indoor Noise Level Reduction (NLR) to DNL

65dB shall be incorporated and considered in individual

approvals. The Building Official shall be responsible for

determining adequacy of attenuation measures.

NLR criteria will not eliminate outdoor noise problems.

However, building location and site planning and design,

and use of berms and barriers may help mitigate outdoor

exposure, particularly from near ground level sources.

Measures that reduce outdoor noise shall be used whenever

practical in preference to measures which only protect

interior spaces. Such measures shall be indicated on a site

pian and evaluated prior to approval of the required permit.

Measures to achieve the same NLR as required for facilities

in DNL 66-70 dB range shall be incorporated into the

design and construction of portions of these buildings where

the public is received, office areas, noise sensitive areas or

where the normal noise level is low.

Measures to achieve the same NLR as required for facilities

in DNL 71-75 dB range shall be incorporated into the

design and construction of portions of these buildings where

14.

15.

16.

17.

18.

19.

20.

21.

A-71

the public is received, office areas, noise sensitive areas or

where the normal noise level is low.

Measures to achieve the same NLR as required for facilities

in DNL 76-80 dB range shall be incorporated into the

design and construction of portions of these buildings where

the public is received, office areas, noise sensitive areas or

where the normal noise level is low.

If noise sensitive, use appropriate NLR. If not noise

sensitive the use is compatible.

No buildings.

Land use is compatible provided special sound

reinforcement systems are installed as approved by the

Building Official.

Residential buildings require the same NLR as required for

facilities in DNL 66-70 dB range.

Residential buildings require the same NLR as required for

facilities in DNL 71-75 dB range.

Residential buildings are not permitted.

Land use is not allowed.

For those situations requiring a hearing before the Airport Zoning

Board before a permit may be issued, the Director of Community

Development or his designee may require building elevations,

building plans, landscape plans and other details to allow for proper

evaluation of the proposed use in order to ensure the protection of

the public’s health, safety and welfare.

A-72

EXHIBIT A

Uses are compatible if they do not result in a gathering of individuals.

in an area that would result in an average density of greater than 25

persons per acre per hour during a 24-hour period, not to exceed

50 persons per acre at any time.

The following is a reproduction of Appendix F, Volume II of the

1992 AICUZ study for Sheppard Air Force Base, and is included

here for ease of reference.

Average Density

Average densities of persons per hour during a 24-hour period are

determined by calculating the number of persons per acre expected

on a site, multiplying by the number ofhour (sic) they will be on the

site, and dividing the total by 24.

Example #1. One 8-hour shift of 30 workers on a one acre site.

Avg. density = 30 persons expected x 8 hours on site = 240

Then 240/24=10: Thus avg. density = 10 persons per hour per

24-hour period.

Example #2. Two 8-hour shifts for 30 workers on a one acre site.

Avg. density = 30 persons expected x 16 hours on site = 480

Then 480/24=20: Thus avg. density = 20 persons per acre per hour

per a 24-hour period.

Maximum Density

The maximum number of persons allowed per acre per hour is

calculated by dividing the number of hours persons will be on site by

24 hours, and then dividing by 25 persons per acre per hour by the

result. The resulting number is the maximum number of persons

A-73

allowed per acre per hour, provided it does not exceed 50. Fifty

persons per acre at any one time is the maximum number of persons

allowed under the standard.

Example. Maximum density for two 8-hour shifts on a one acre

site. 25 divided by 16/24 = 37.5 persons per hour allowed.

Application of this formula results in the following table which

specifies the maximum persons per acre per hour for the duration of

the time that persons are expected to be on site during a 24-hour

period.

PERSONS PER ACRE

HOURS OF OPERATION MAXIMUM PERSONS

PER DAY ALLOWED PER ACRE/

DURING EACH HOUR

24 25

23 26

22 27

21 28

20 30

19 31

18 33

17 35

16 37

15 40

14 42

13 46

12 or less 50*

* NOTE: Fractions in the maximum number of persons

allowed column are rounded to the lowest whole number.

* Also note that concentrations of people may not exceed 50

people/acre at any time.

A-74

VERNON'S TEXAS STATUTES AND CODES

ANNOTATED

LOCAL GOVERNMENT CODE

TITLE 7. REGULATION OF LAND USE, STRUCTURES,

BUSINESSES, AND RELATED ACTIVITIES

SUBTITLE A. MUNICIPAL REGULATORY AUTHORITY

CHAPTER 211. MUNICIPAL ZONING AUTHORITY

SUBCHAPTER A. GENERAL ZONING REGULATIONS

§ 211.004. Compliance With Comprehensive Plan

(a) Zoning regulations must be adopted in accordance with a

comprehensive plan and must be designed to:

(1) lessen congestion in the streets;

(2) secure safety from fire, panic, and other dangers;

(3) promote health and the general welfare;

(4) provide adequate light and air;

(5) prevent the overcrowding of land;

(6) avoid undue concentration of population; or

(7) facilitate the adequate provision of transportation, water,

sewers, schools, parks, and other public requirements.

A-75

VERNON'S TEXAS STATUTES AND CODES

ANNOTATED

LOCAL GOVERNMENT CODE

TITLE 7. REGULATION OF LAND USE, STRUCTURES,

BUSINESSES, AND RELATED ACTIVITIES

SUBTITLE C. REGULATORY AUTHORITY APPLYING

TO MORE THAN ONE TYPE OF LOCAL GOVERNMENT

CHAPTER 241. MUNICIPAL AND COUNTY ZONING

AUTHORITY AROUND AIRPORTS

§ 241.001. Short Title

This chapter may be cited as the Airport Zoning Act.

§ 241.002. Legislative Findings

The legislature finds that:

(1) an airport hazard endangers the lives and property of

users of the airport and of occupants of land in the vicinity of the

airport;

(2) an airport hazard that is an obstruction reduces the size

of the area available for the landing, taking off, and maneuvering of

aircraft, tending to destroy or impair the utility of the airport and the

public investment in the airport;

(3) the creation of an airport hazard is a public nuisance and

an injury to the community served by the airport affected by the

hazard;

A-76

(4) itis necessary in the interest of the public health, public

safety, and general welfare to prevent the creation of an airport

hazard;

(5) the creation of an airport hazard should be prevented,

to the extent legally possible, by the exercise of the police power

without compensation; and

(6) the prevention of the creation of an airport hazard and

the elimination, the removal, the alteration, the mitigation, or the

marking and lighting of an airport hazard are public purposes for

which a political subdivision may raise and spend public funds and

acquire land or interests in land.

§ 241.003. Definitions

In this chapter:

(1) "Airport" means an area of land or water, publicly or

privately owned, designed and set aside for the landing and taking

off of aircraft and used or to be used in the interest of the public for

that purpose. The term includes an area with installations relating

to flights, including installations, facilities, and bases of operations for

tracking flights or acquiring data concerning flights.

(2) "Airport hazard" means a structure or object of natural

growth that obstructs the air space required for the taking off,

landing, and flight of aircraft or that interferes with visual, radar,

radio, or other systems for tracking, acquiring data relating to,

monitoring, or controlling aircraft.

(3) "Airport hazard area" means an area of land or water on

which an airport hazard could exist.

A-77

(4) "Airport zoning regulation” means an airport hazard area

zoning regulation and an airport compatible land use zoning

regulation adopted under this chapter.

(5) "Centerline" means a line extending through the midpoint

of each end of a runway.

(6) "Compatible land use" means a use of land adjacent to

an airport that does not endanger the health, safety, or welfare of the

owners, occupants, or users of the land because of levels of noise

or vibrations or the risk of personal injury or property damage

created by the operations of the airport, including the taking off and

landing of aircraft.

(7)"Controlled compatible land use area" means an area of

land located outside airport boundaries and within a rectangle

bounded by lines located no farther than 1 12 statute miles from the

centerline of an instrument or EP {2} primary runway and lines

located no farther than five statute miles from each end of the paved

surface of an instrument or primary runway.

(8) "Instrument runway” means.an-existing or planned

runway of at least 3,200 feet for which an instrument landing

procedure published by a defense agency of the federal government

or the Federal Aviation Administration exists or is planned.

(9) "Obstruction" means a structure, growth, or other

object, including a mobile object, that exceeds a limiting height

established by federal regulations or by an airport hazard area

zoning regulation.

(10) "Political subdivision" means a municipality or county.

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(11) "Primary runway” means an existing or planned paved

runway, as shown in the official airport layout plan (ALP) of the

airport, of at least 3,200 feet on which a majority of the approaches

to and departures from the airport occur.

(12) "Runway" means a defined area of an airport prepared

for the landing and taking off of aircraft along its length.

(13) "Structure" means an object constructed or installed by

one or more persons and includes a building, tower, smokestack,

and overhead transmission line.

§ 241.004. Airport Used in Interest of Public

For the purposes of this chapter, an airport is used in the interest of

the public if:

(1) the owner of the airport, by contract, license, or

otherwise, permits the airport to be used by the public to an extent

that the airport fulfills an essential community purpose; or

(2) the airport is used by the state or an agency of the state

or by the United States for national defense purposes or for any

federal program relating to flight.

§ 241.005.

A reference in this chapter to the adoption of an airport zoning

regulation includes the amendment, repeal, or other change of a

regulation. A reference to the adoption of an airport zoning

regulation also includes the amendment of an airport zoning

regulation existing on the date the law codified by this chapter took

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effect, which was September 5, 1947.

§ 241.011. Airport Hazard Area Zoning Regulations

(a) To prevent the creation of an airport hazard, a political

subdivision in which an airport hazard area is located may adopt,

administer, and enforce, under its police power, airport hazard area

zoning regulations for the airport hazard area.

(b) The airport hazard area zoning regulations may divide

an airport hazard area into zones and for each zone:

(1) specify the land uses permitted;

(2) regulate the type of structures; and

(3) restrict the height of structures and objects of

natural growth to prevent the creation of an obstruction to flight

operations or air navigation.

§ 241.012. Airport Compatible Land Use Zoning Regulations

(a) A political subdivision may adopt, administer, and

enforce, under its police power, airport compatible land use zoning

regulations for the part of a controlled compatible land use area

located within the political subdivision if the airport is:

(1) used in the interest of the public to the benefit of

the political subdivision; or

(2) located within the political subdivision and

owned or operated by a federal defense agency or by the state.

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(b) The political subdivision by ordinance or resolution may

implement, in connection with airport compatible land use zoning

regulations, any federal law or rules controlling the use of land

located adjacent to or in the immediate vicinity of the airport.

include a statement that the airport fulfills an essential community

purpose.

§ 241.013. Extraterritorial Zoning in Political Subdivisions

With Population of More Than 45,000

(a) A political subdivision with a population of more than

45,000 in which an airport used in the interest of the public to the

benefit of the political subdivision is located may adopt, administer,

and enforce:

(1) airport hazard area zoning regulations applicable

to an airport hazard area relating to the airport and located outside

the political subdivision; and

_ (2) airport compatible land use zoning regulations applicable

to acontrolled compatible land use area relating to the airport and

located outside the political subdivision.

(b) The political subdivision has the same power to adopt,

administer, and enforce airport hazard area zoning regulations or

airport compatible land use zoning regulations under this section as

that given a political subdivision by Sections 241.011 and 241.012.

compatible land use zoning regulations must include a statement that

the airport fulfills an essential community purpose.

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§ 241.014. Joint Airport Zoning Board

(a) A political subdivision to whose benefit an airport is used

in the interest of the public or in which an airport owned or operated

by a defense agency of the federal government or the state is

located may create a joint airport zoning board with another political

subdivisicr. in which an airport hazard area or a controlled

compatible land use area relating to the airport is located. The

political subdivisions must act by resolution or ordinance in creating

the joint board.

(b) The joint airport zoning board has the same power to

adopt, administer, and enforce airport hazard area zoning

regulations or airport compatible land use zoning regulations under

this section as that given a political subdivision by Sections 241.011

and 241.012.

members appointed by each of the political subdivisions creating the

board and, in addition, a chairman elected by a majority of the

appointed members.

(d) If an agency of the state owns and operates an airport

located within an airport hazard area or controlled compatible land

use area governed by a joint airport zoning board, the agency is

entitled to have two members on the board.

(e) The joint airport zoning board for an airport that is

owned or operated by a defense agency of the federal government

and that is closed by the federal government may provide that

zoning regulations adopted by the board continue in effect until the

fourth anniversary of the date the airport is closed.

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§ 241.015. Incorporation of Airport Zoning Regulation Into :

A political subdivision may incorporate an airport zoning regulation

in a comprehensive zoning ordinance and administer and enforce it

in connection with the administration and enforcement of the :

comprehensive zoning ordinance if:

(1) the two zoning regulations apply, in whole or in part, to

the same area; and

(2) the comprehensive zoning ordinance includes, among

other matters, a regulation on the height of buildings

§ 241.016. Airport Zoning Commission

(a) Before

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