Air rights

An example of air rights in use: a high-rise building extends over a four-story building in Manhattan

Air rights are the property interest in the "space" above the earth's surface. Generally speaking, owning, or renting, land or a building includes the right to use and develop the space above the land without interference by others.

This legal concept is encoded in the Latin phrase Cuius est solum, eius est usque ad coelum et ad inferos ("For whoever owns the soil, it is theirs up to Heaven and down to Hell."), which appears in medieval Roman law and is credited to 13th century glossator Accursius; it was notably popularized in common law in Commentaries on the Laws of England (1766) by William Blackstone; see origins of phrase for details.

Air travel

Property rights defined by points on the ground were believed to extend indefinitely upward. This notion remained unchallenged before air travel became popular in the 20th century. To promote air commerce, legislators established a legal height for any interests associated with lands; thereby establishing a public right to transit through the higher altitudes.[1] Both the public easement in the space at higher altitudes and a landowner right to exclusive use of the space at lower altitudes have been well documented by the U.S. judiciary.

New technologies have again raised questions about ownership of "space" and the upward bounds of national sovereignty. With the advent of space travel above earth's atmosphere, the height at which national sovereignty extends and therefore nations can regulate transit is often debated. Also, flight by drones at lower altitudes interferes with property interests associated with existing land grants and deeds.

United States

A building is cantilevered over two other buildings in New York City

In the United States, the Federal Aviation Administration (FAA) has the sole authority to control all "publicly owned" airspace, exclusively determining the rules and requirements for its use.[2] Specifically, the Federal Aviation Act provides that: "The United States Government has exclusive sovereignty of airspace of the United States",[3] but not all the airspace is "possessed" by the United States. For non-public airspace, Congress has provided authority for the FAA to purchase this non-public airspace near airports to accommodate planes taking off and landing.[4] The "navigable airspace" in which the public has a right of transit without affecting a landowners property rights has been set at the height of 500 ft in urban or suburban areas,[5] and 360 feet above the surface or tallest structure in rural areas.[6] The exact altitude(s) at which the airspace over private land becomes "public" airspace, or where the upward bounds of national sovereignty extends is often debated, but the Supreme Court rulings and space treaties are clear. A landowner's domain extends up to at least 365 feet above the ground. see Causby v US (1946),[7] and no nation can prevent orbits above the Earth's atmosphere.

The FAA is required to pay financial compensation to property owners when their property interests are taken for overflights. Compensated landowners may then be required to waive any putative damages for interference with "air rights" in order to avoid lawsuits from future owners' nuisance claims against low flying aircraft. This is called a navigation or avigational easement.

The low cost of unmanned aerial vehicles (also called drones) in the 2000s re-raised legal questions regarding whose permission is required to fly at low altitudes; the landowner, the FAA or both.[8] Although the FAA reestablished that navigable airspace is the space above 500 feet,[9] the FAA also set regulations which allow drones to fly below 400 feet in order to prevent interference with planes above that height.[10] The FAA's actions are expected to see challenges in the judiciary.

Railroads and air rights

Railroads were the first companies to realize the potential of making money from their air rights. A good example of this is Grand Central Terminal in New York City, where William J. Wilgus, chief engineer of the New York Central and Hudson River Railroad, devised a plan to earn profit from air rights. At first, the railroad simply constructed a platform above the rail yards to allow for the development of buildings overhead. By 1954, the railroad began to realize it could sell more air rights and Grand Central Terminal was proposed to be replaced by a 50-story tower. This is how the Pan Am Building came to be built next to the station, after public protest regarding the demolition of Grand Central Terminal.[11]

Building on platforms over railroad tracks is still potentially very profitable, especially in New York City. Recently the Metropolitan Transportation Authority attempted to sell air rights to the New York Jets so that they could build the West Side Stadium over the West Side Yard near Penn Station as part of the Hudson Yards Redevelopment Project. The MTA has even proposed building a platform themselves to encourage development. In Brooklyn, the Barclays Center has been constructed over the Atlantic Yards.

Roads and air rights

Similar to railroads, builders of highways have proposed selling their air rights; Boston did this in connection with the Big Dig.[12]

The City of Los Angeles funded a $100,000 feasibility study RFP in January 2007 to explore building a freeway cap park in Hollywood. The park would be built above US highway 101 and contain 24 acres (97,000 m2) of new parkland.[13]

Air rights in development

The owner of the land has the exclusive development rights in the 'space' above his lands. Under common law, building a 'hangover' that breaks the vertical plane of a neighbors property is a trespass and the property owner has the right to remove offending structure. The Airspace is property and retains Developmental rights which can be sold or transferred. Thus in a dense downtown area, each building in the area may have the right to thirty-five stories of airspace above his own property. The owners of an older building of only three stories high could make a great deal of money by selling their building and allowing a thirty-five story skyscraper to be built in its place. For example, a skyscraper developer may purchase the unused airspace from an adjacent landowner in order to develop a broader building. In November 2005, Christ Church in New York sold its vertical development rights for a record $430 per square foot, making more than $30 million on the sale.[14]

See also

References

Notes

  1. ↑ Paris Convention of 1919 (Convention for the Regulation of Aerial Navigation, Oct. 13, 1919, 11 L.N.T.S. 173) and the Pan American Convention on Commercial Aviation, U.S.-Cuba, Feb. 20, 1928, see 47 Stat. 1901)
  2. ↑ 49 U.S.C. 180, 49 U.S.C.A. 18 , § 40103 "use of airspace"
  3. ↑ "49 U.S.C. 40103(a)(1)". Archived from the original on 10 April 2009. Retrieved 2009-04-07.
  4. ↑ 49 U.S.C § 40110
  5. ↑ "Argent v. U.S. 124 F.3rd 1277,1281 (1997) citing Lacey v. United States, 219 Ct.Cl. 551, 595 F.2d 614, 616 (1979) (treating 500 feet as line of demarcation between compensatable property taking and non-compensatable overflights); Matson v. United States, 145 Ct.Cl. 225, 171 F.Supp. 283, 286 (1959) (providing compensation for flights under 500 feet).Aaron v. United States, 160 Ct.Cl. 295, 311 F.2d 798, 801 (1963) (allowing claims based on flights below 500ft, while denying those based on flights over 500ft).”
  6. ↑ U.S. v Causby 328 U.S. 256,264-266 (1946) and Causby v U.S. 75 F.262 Ct.Cl (1948)
  7. ↑ U.S. v Causby 328 U.S. 256,264-266 (1946) and Causby v U.S. 75 F.262 Ct.Cl (1948)
  8. ↑ http://www.npr.org/templates/transcript/transcript.php?storyId=317074394
  9. ↑ Doc. No. 18334, 54 FR 34294, Aug. 18, 1989, as amended by Amdt. 91-311, 75 FR 5223, Feb. 1, 2010
  10. ↑ F.R. 2016 6-28-2016 Pgs 42063- 42214 DOC #: 2016-15079
  11. ↑ Gray, Christopher (October 11, 1998). "Grand Central Terminal; The 23-Story, Beaux-Arts 1913 Tower That Wasn't". The New York Times. Retrieved 2009-08-22.
  12. ↑ McCown, James (September 4, 2002). "Boston Air Rights". Architecture Week. 113 (4).
  13. ↑ » Community-Wide Hollywood Central Park Meeting
  14. ↑ Bagli, Charles V. (November 30, 2005). "$430 a Square Foot, for Air? Only in New York Real Estate". The New York Times. Retrieved 2009-08-22.

Transferable Development Rights (TDR)


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