Jefferson County airport sued for noise, lead contamination

More than 400 residents of Superior’s Rock Creek subdivision filed a lawsuit against neighboring Jefferson County, owner of the Rocky Mountain Metropolitan Airport, complaining that noise and alleged pollution from leaded aviation fuel are affecting their well-being and devaluing their homes.

The residents of the subdivision claim in the lawsuit that increasing use of the airport has harmed them due to “noise and vibration” and other related activity. The complaint includes allegations that aviation gasoline known as “100LL,” which contains small amounts of lead, is polluting their homes.

The lawsuit, originally filed in Boulder District court was sent to the U.S. District Court in Denver February 21, because it involves federal regulations pertaining to the use of airspace.

Jefferson County, in a motion to dismiss said: “This is not a case in which the government built an airport adjacent to an existing suburban community thereby subjecting the residents to unanticipated noise and other consequences. Rather, it is undisputed that the Airport was built in 1960 and Plaintiffs reside in a development that did not exist until the 1980s. In other words, every Plaintiff moved to Superior with full knowledge of the existence of the Airport.”

Before the case was transferred to the federal courts, Boulder County District Court judge Stephen P. Howard ruled that nine of 29 “avigation easements” given by the original subdivision developers were invalidated because operations at the airport violated their provisions. It was that ruling that caused Jefferson County to appeal to the federal courts.

When the subdivision was built, the airport negotiated what are called “avigation easements” with the developer allowing unlimited use of the airspace. Residents allege that the easements have been violated by the increasing levels of noise and vibration caused by increased use of the airport and by lead contamination of their property.

Brad Schuster, Northwest Mountain regional manager for the Aircraft Owners and Pilots Association, said avigation easements are often used to forestall the sort of complaints seen here, but they are neither necessary nor required by law.

“That's the answer. They're not required,” Schuster told The Denver Gazette. “They're recommended in no small part because this allows sort of know-before-you-buy type of option. If they're moving next to an airport and they don't really think about, it's a beautiful day, it's a quiet day, nobody's flying. They're none the wiser.”

Residents claim ownership of the airspace above their property, saying they own the space below 1,000 feet above ground level.

“The airspace above a property is included within the bundle of rights owned by landowners," according to the complaint. "For a property located in a rural area, landowners own the airspace up to 500 feet; in a congested area, they own the airspace up to 1,000 feet. Navigable airspace exists above those thresholds and is generally considered part of the public domain.”

However, while Colorado law vests ownership of space above the surface in the owner of the surface, it makes that ownership “subject to the right of the flight of aircraft,” which according to Federal Aviation Administration regulations, includes lower altitudes for takeoff and landing.

Rocky Mountain Metropolitan Airport, originally known as Jefferson County Airport, was built in 1960 on a mesa just south of the Jefferson County line, and above what is now the Interlocken Business Park at U.S. 36 and Highway 128.

At the time, Superior was a tiny, bucolic town east of Boulder. A coal-mining town founded in 1896 and incorporated in 1904, it got its name from the “superior” quality of the coal mined in the area. When the coal mines closed in 1945, most people left, and Superior became a quiet farming and ranching community of about 250 people.