The City of Boulder has filed a lawsuit against the Federal Aviation Administration in federal district court, challenging the agency’s assertion that the city must keep its airport operating indefinitely. The city claims the FAA is violating protections in the U.S. Constitution.
The lawsuit, filed in U.S. District Court on July 26, seeks a judicial declaration that would allow the city to legally close Boulder Municipal Airport by 2040.
This legal dispute is the latest development in a longstanding debate over the airport’s future. Boulder Municipal Airport, in the city’s northeast corner, primarily serves private pilots, trainees, glider pilots and researchers. Last summer, the city began considering whether to upgrade it or demolish it, proposing two scenarios to city councilmembers last week.
Separately, a group of residents is pushing a ballot measure this November to close the facility and use the land for affordable housing. Opponents of the measure cite a potentially costly legal dispute with the FAA as a primary reason not to close the airport.
At the center of the lawsuit is whether federal grants the city accepted decades ago to purchase land require Boulder to keep the airport operational indefinitely. The city argues it accepted two FAA grants for land purchases in 1959 and 1977, both of which stipulated a maximum 20-year obligation. The city argues that the other grants it received for easements, most recently in 1991, do not require the city to keep the airport running in perpetuity.
However, an FAA official told the city in a March 2024 letter that “grant assurances associated with land purchased with Federal aid do not expire and the land must be used in perpetuity for its originally intended purpose.” The official added that while the FAA could release the city from these obligations, it was “highly unlikely” due to the airport’s continued benefit to civil aviation.
The FAA justifies its position based on a policy adopted in the 1980s, after Boulder’s land purchases, claiming these grant agreements do not expire. In its lawsuit, Boulder argues that applying retroactive terms violates constitutional provisions, including the anticommandeering doctrine, the separation of powers doctrine and due process protections.
“The FAA’s position is not only inconsistent with the express terms of its grant agreements with the City but is also an unconstitutional overreach,” Boulder’s lawyers stated in the complaint. They argued that the FAA’s stance “wrests from the City its ability to provide for the public health, safety, and welfare of its citizens, and clouds the City’s fee simple title to the property comprising the Airport.”
Critics of Boulder’s airport also cite concerns about noise and lead pollution from piston-engine aircraft as reasons for wanting it to close.
The city is seeking a federal district court ruling declaring that Boulder is no longer bound by its grants for land or easements. Additionally, it seeks a broader ruling declaring the FAA’s policies on land purchase grants unconstitutional. The city has retained Kaplan Kirsch LLP, a national law firm with offices in Denver, for the lawsuit. Boulder is also asking the FAA to cover legal fees.
The lawsuit potentially could have implications for other cities and towns looking to shut down their municipal airports.
Donnell Evans, a spokesperson for the FAA, said the agency does not comment on pending litigation.
A city official said recently that the airport logs approximately 65,000 operations annually, less than a third of the traffic at Rocky Mountain Metropolitan Airport in Jefferson County.
Boulder has already stopped accepting federal grant money to operate the airport in anticipation of a decision by the Boulder City Council or voters in the November election on whether to close it. The city said the last FAA grant it accepted with a 20-year obligation was in May 2020, theoretically allowing the airport to close by 2040.
Time out, City Council. Don’t be using tax dollars to support closure until after the election where We the People get to voice our opinion on the future of the airport.
I Absolutely agree with you.
I don’t think you know how government works. You the People voted for the city council to make decisions for you.
Exactly, and they are the ones that voted these politicians into office.
The city needs to let the voters speak before wasting our tax dollars yet again (see Xcel Energy lawsuit). The neighbors that moved in AFTER the airport knew what they were moving into and now grossly over exaggerate any environmental impact of the airport. This is lunacy.
Adios dirty polluting general aviation! It’s only a matter of time…
So you don’t fly Larry?
I am assuming this is Boulder City, CO and not NV, your article doesn’t say. The City of Santa Monica, CA did the same thing. It took the 50 years and millions of dollars to close the airport and millions of infrastructure has to be taken to land fill. Airports are used by more people than nature centers and contribute millions in revenue. There is no shortage of land in the area and it seems as unusual, just more sour grapes over an airport and greedy developers looking for cheap land to build slums.
Yes, Boulder, Colorado.
Nobody will be building slums on this property. It seems ripe for multimillion dollar minimansions.
As for Santa Monica, I grew up there, and the aviation environment was utterly different than here, with dozens of private jets flying in every hour of every day. Santa Monica Airport became a nuisance. Boulder, Colorado’s airport is a quiet municipal field with flight schools and glider tow planes.
Neighbors’ complaints about noise and pollution are horse puckey. They bought their homes on the flight path, and within a decade, the FAA will have transitioned aircraft to lead-free fuels or electric aircraft that emit no pollution at all.
This is nothing more than a gigantic waste of money and a boondoggle cooked up by greedy property developers who want to pretend this is for affordable housing, but fail to account for the fact that the airport has no services for as many homes as they claim, one road in and out, and is located amid a neighborhood that is already a food, school, shopping, and transit desert for the existing neighbors.
Yup. Our money.
So, exactly who instructed the attorneys to file a suit prior to a vote on the proposal? Exactly how many taxpayer dollars are to be expended on this action?
Everyone should take at the lawsuit itself; the City is effectively arguing that historical city councils did not take FAA money post 1980 knowing they would need to continue to operate the airport into perpetuity. Of course they kept taking money…again and again, even up until 2020 across many grants.
I wonder where the millions of dollars for this legal escapade will come from…at least we know it’s lining the pockets of Kaplan Kirsch LLP.
According to the article, the city is arguing that the “perpetuity” clause only pertains to land purchases, the last of which Boulder received a grant for in 1977.
Couldn’t they have figured out the FAA stance sooner, studied it more detail, and then taken a council vote on whether the majority supports closure? I didn’t get the impression from last week’s meeting that council had made any decisions about that even though staff was asking for a decision. The ballot initiative will be irrelevant if Boulder loses lawsuit.
I’m glad to see Boulder do this. Are there other contracts that the city has entered us into “in perpetuity?”
It’s simply preposterous that the city could legally enter us into a contract for something until the end of time especially something so restrictive as this FAA contract.
Once again the city our wasting money on unnecessary legal expenses. So similar to the enormous waste of money on the attempted muncipalization of the electric utility assets. The city claims it has limited resources to do things it needs to do like paving and cleaning streets and effective snow removal, but can waste large amounts of money on half-baked initiatives like shutting down a valuable community asset such as the airport. Key question for the reporters on this story–who will financially benefit from the closing of the airport and what influence do they have over the city council and government?
Additional points for the reporters to investigate:
1. How much has it and will it cost the city to forgo the FAA subsidies?
2. What is the budget for the law
suit?
3. Why, when and how did the city forgo the subsidies?
The aim is to build a majority AFFORDABLE housing on the site, not the usual 20% or none at all. What I’ve heard is at least 50% affordable to low/very low income residents. They will have to be very creative to do this but it’s doable with the right combinations of state and federal subsidies and creative financing. But, yeah, it would be really good to have more detailed information on how this can be accomplished, and who will do it. I doubt it’s easy for reporters to figure out, though. One thing, it certainly wouldn’t be business as usual with the private equity for-profit corporate developers feeding from the trough. Also, I don’t get all the hand wringing about building affordable housing. I understand folks don’t like anything to change because they are trying hard to live in the past but it’s not possible. Population has steadily increased across the board over the past 50 years while the housing supply affordable to the majority has precipitously decreased. That math ain’t mathing. People need a place to live that they can actually afford. Even in Boulder it shouldn’t be primarily a market for the wealthy elite and private equity.
What were the individual positions of the council, was there any dissent or discussion? This sort of reporting shields those making unwise (and costly) decisions from criticism and removal .
On purpose, I would think.
There were a lot of questions. The information provided to council by staff is often short on relevant details. You can easily view the city council meeting online yourself.
Roxanne, your assessment is incorrect. This is a saturated market.
Robin the municipalization was money well spent and essential. We’re going to do it in ’25 and it will be a financial benefit to you.
Lynn, the more affordable housing the better. We need people to live here who work here and want to live here and are not wealthy. We can’t just be a community of old retired people.