Boulder sues FAA over feds’ stance on airport closure

BOULDER — The Boulder municipal government is asking a federal judge to determine whether the city has the right to defy the Federal Aviation Administration and close the Boulder Municipal Airport.

A lawsuit filed by the city on Friday in U.S. District Court in Colorado demands that a judge release the city from its FAA-mandated obligation to operate the airport in perpetuity. That obligation, the FAA has argued, results from the acceptance of grant funding decades ago to purchase portions of the airport site. 

Boulder Municipal Airport property has been identified by housing advocates as a prime location for the development of below-market-rate homes.

“In response to a dwindling supply of affordable housing, mounting concern regarding noise and other environmental impacts associated with aircraft operations at the Boulder Municipal Airport, and potential liability arising from its ownership and operation of the Airport, the City is considering the closure and redevelopment of the Airport,” Boulder’s lawsuit said. 

In late June, a pair of separate but complementary petitions related to decommissioning BDU for the purpose of building housing — Repurpose Our Runways and Runways to Neighborhoods — received enough signatures to potentially appear on the November ballot. 

To achieve the desired affordable housing, the city would sell acreage within the current airport footprint to developers on the cheap, with the pledge that a certain percentage of homes built there would be sold at below-market prices. 

“In August 2023, representatives of the City met with the FAA to discuss, among other things, the City’s desire to close and repurpose the Airport,” Boulder’s lawsuit said. “The FAA indicated that it would not be willing to release the City from its grant assurance obligations and asserted that such grant assurance obligations would apply in perpetuity.”

The position of the Federal Aviation Administration, which provided the city with grant funds in 1959, 1963 and 1977 to purchase a total of about 44 acres on the airport site, is that the acceptance of such grants require the city to continue operating the airport indefinitely. 

The FAA’s “policy (is) to strengthen the national airports system and not to support the closure of public airports,” according to a letter to city staff from John Bauer, the FAA’s Denver Airports District manager. “The FAA has rarely approved an application to close a federally obligated airport. Such approvals were granted only in highly unusual circumstances where closing the airport provided a benefit to civil aviation such as funding a replacement airport in the community.”

The city acknowledges that certain FAA grants come with a 20-year commitment to continue airport operations. In preparation for a decision on whether to decommission the Boulder Municipal Airport, the city stopped accepting federal grants in 2021. That means, Boulder’s lawsuit claims, that the city should be free to close the airport in 2041.

“But the FAA claims that because three prior grants – all accepted between 30 and 65 years ago – were for the acquisition of real property, the City is obligated to operate the Airport in perpetuity, unless the FAA – and only the FAA – says otherwise,” the complaint said. 

Representatives of the FAA did not immediately respond to a request for comment on Saturday afternoon.

The federal government’s position on the city’s right to decommission the airport is “not only inconsistent with the express terms of its grant agreements with the City but is also an unconstitutional overreach – in violation of the separation of powers doctrine, the Spending Clause, and the Fifth and Tenth Amendments – that 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,” the lawsuit said. 

The lawsuit is City of Boulder v. United States of America et al, case number 1:24-cv-02057, filed July 28 in U.S. District Court in Colorado.