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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

The Basics About Avigation Easements  Posted: August 3, 2016

Some Basics About Avigation Easements

Most homeowners are aware that their property is encumbered (burdened by) by one or more easements, usually for electrical lines, or for other public uses.

An “avigation easement” is a term describing property rights that the owner of the property conveys through a written document to an airport authority, allowing certain activities associated with air flight to occur above the height of the easement.

There are several types of avigation easements, and some convey more rights than others to the airport and to users of the airport.

The avigation easement with the greatest scope of rights conveyed is an “aviation and hazard” easement, which usually conveys a:

• Right of flight over the property at any altitude above the acquired surfaces (for example, above 30, 40, or 50 feet)
• Right to cause noise,, vibrations, fumes, dust and to emit fuel particles
• Right to prevent the landowner from erecting or growing any objects (trees, structures, etc.) that would penetrate the acquired surface
• Right to enter the property to remove, mark, or light any structures or growth above the acquired surface
• Right to prohibit the creation of electrical interference or directed lighting or glare from the property
• Other rights as specified in the easement.

A second, and less broad type of avigation easement, is called a “Limited Avigation Easement” and typically includes only the:

• Right of flight at any altitude above acquired surfaces
• Right to prevent erection or growth of all objects above the acquired surface
• Right to enter the property to remove, mark, or light any structures or growth above the acquired surface.

The least intrusive easement is one that is termed a “clearance easement,” and which simply conveys the right to the airport to:

• Right to prevent erection or growth of all objects above the acquired surface
• Right to enter the property to remove, mark, or light any structures or growth above the acquired surface.

The LRAA currently holds some 51 easements acquired since 1991 and allowing the operation of the airport, and those that I’ve seen are of the “aviation and hazard” variety. According to FAA guidance, airports participating in the “Airport Improvement Program,” which are called “sponsors” in FAA parlance, are to acquire “real property rights of such nature and extent that are adequate for the construction, operation, and maintenance of the grant assisted project. “

According to the LRAA, they intend to move forward without further use of federal funds to acquire easement as they deem necessary to remove obstructions (trees) from the airspace. Within the runway protection zone, the FAA requires that the easement be an aviation and hazard easement. Outside of that zone, however, it is questionable that the airport needs or could justify anything more than obtaining a clearance easement.

The LRAA has indicated it intends to move forward to acquire the easements, and has notified landowners that they will have an appraisal done which will form the basis of their monetary offer.

Landowners have inquired as to whether, if they refuse to grant an easement to the LRAA, they could be subject to the exercise of “eminent domain” (i.e. condemnation.) Under Kentucky’s constitution, no property can be taken without compensation, and unless there is “public use.” A public purpose is insufficient. KRS 183.122 empowers the Kentucky Transportation Cabinet to condemn and acquire easements “as are necessary to insure safe approaches to the landing areas of said airports and the safe and efficient operation thereof.” The Cabinet Secretary may, by order, authorize an airport board or governmental unit to condemn such rights. Under the Eminent Domain Act, a condemnor must first make a good faith offer to acquire the easement prior to commencement of eminent domain proceedings. While the condemnor must demonstrate that the rights sought to be acquired are “necessary,” the Courts grant some deference to the condemnor on the issue of necessity.

This handout, prepared by Tom FitzGerald, Kentucky Resources Council, Inc. is intended to provide basic information and is not intended as legal advice. Any person who is approached by the LRAA or an agent of the LRAA seeking an easement should consult with an attorney prior to granting an easement or signing any document, and may want to consult an independent appraiser to value the rights that the LRAA seeks to acquire.











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