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.
Development began in earnest when property northwest of the airport was subdivided in 1987.
“Through 2006, approximately 2,700 single-family homes and 1,800 multi-family homes have been developed in Rock Creek swelling Superior’s population to approximately 12,483,” according to the town’s website.
The Rock Creek subdivision was built directly in line with the “critical zones” of the airport’s runways, against the recommendations of Jefferson County, Boulder County, and aviation authorities at the time. Safety was a concern as the subdivision is about two miles northwest of the end of the runways — right where a failed takeoff might end up.
The complaint also states that aircraft “drop lead particulates found in the aviation fuel used by small planes directly onto the Properties, causing an ongoing physical occupation of the Properties, raising serious health concerns, and again directly and substantially interfering with the Homeowners’ use and enjoyment of their properties and significantly affecting the marketability and value of the Properties.”
But surface swab testing for lead in Superior by Pinyon Environmental in August 2023 revealed no lead contamination, and neither did airborne lead sampling in January 2024. Nor did airborne and swab testing in Louisville, just across U.S. 36 from Superior, reveal any lead.
The Aircraft Owners and Pilots Association has not been able to find harmful levels of lead caused by general aviation, Schuster said.
“AOPA is all about the facts. We are trained and organized around providing factual data, whether it’s data that supports us or whether it’s data that’s contrary to a goal,” said Schuster. “What we’re finding nationally, particularly in a couple hotspots like Colorado, Washington and California, is that communities that have, over time, encroached on airports like RMMA that’s been there since 1960, we are finding that more than facts, emotions are being fanned around something that we know is not healthy, lead. But the facts do not support that we’ve been able to find those harmful levels as a result of general aviation.”
The case is awaiting a ruling on the motion to dismiss.