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Problems with the Proposed New Airport Compatible Use Overlay District (ACOD)--Proposed Revisions to Chapter 27, Article III, Division 2, DeKalb File No. 82-0151:

There are extremely serious problems with the new Airport Compatible Use Overlay District (ACOD) ordinance that has recently been proposed for DeKalb County. This new ordinance would constitute a fundamental assault on the property rights of homeowners, realtors, and businesses in the ACOD, as well as in the rest of DeKalb County. It would also violate the most basic representative processes that underlie the county, state, and national government in this Republic as it has developed since our independence from Great Britain in 1783.

In violation of current principles of representative government in DeKalb County (and similar long-established principles throughout the United States of America generally), this ordinance would remove zoning decisions within the ACOD area from the hands of the elected DeKalb Board of Commissioners, where it currently resides, and place it wholly, and without any appeal process, in the hands of the appointed, rather than elected, DeKalb County Director of Public Works and the Director of DeKalb Peachtree Airport.

Furthermore, according to DeKalb County's Assistant Attorney, Daniel S. Digby, in his cover Memorandum of March 23, 2001, introducing the proposed new ordinance, the ordinance would require that "any construction or alteration more than 200 feet in height anywhere in the county have FAA approval," thus bringing the FAA, an appointive agency of the Federal government, directly into local zoning decisions throughout all of DeKalb County, not just within the ACOD itself.

The proposed ACOD ordinance would specifically require (Sec. 27-666) that "Within the ACOD, no material change shall be made in the use of land, and no structure or natural growth shall be materially erected, altered, planted or otherwise established, in the ACOD unless a permit therefore shall have been applied for and granted by the Director of Public Works, subject to review by the Airport Director of DeKalb Peachtree Airport, as set forth in Sec. 27-665 above." (p. 14)

The ordinance also would require (Sec. 27-669) that: "In addition to the provisions of Sec. 27-666, any permit or variance granted under the provisions of this Division shall be granted with the condition that the owner of the structure or natural growth in question shall enter into an avigation [flight] easement agreement in a form approved by DeKalb County." (p. 14)

The specific form of that irrevocable avigation easement that would have to be signed before almost any alteration of one's personal property use or any planting or construction on one's personal or business property would be approved by the DeKalb County Director of Public Works and the Airport Director of DeKalb Peachtree Airport within the ACOD is not specified in the ordinance. The sample Avigation Easement extracted from FAA's WEB site (see Roman numeral V, item C), however, includes provisions such as the following:

"NOW, THEREFORE, Grantors [of this Avigation Easement] have and by these presents do hereby transfer, assign, bargain, sell, grant and convey to grantee a perpetual right and easement for the free and unobstructed flight of aircraft (being defined as any contrivance now or hereafter used for flight in air) over and in the vicinity of the property described in Exhibit A attached hereto, including jet-powered air carrier aircraft in landing and take-off operations and other flight activities associated therewith, together with the right to cause such noise, vibrations, odors, vapors, particulates, smoke, dust or other effects as may be inherent in the operation of aircraft of all types.

"This Easement shall be appurtenant to and shall run with the real property now owned and hereafter acquired and used for airport purposes by Grantee or its successors in interest. This Easement and the burden thereof, together with all incidents and effects of or resulting from use and enjoyment thereof shall constitute a permanent burden and tenement upon subject property which shall be binding upon and enforceable against the Grantors, their heirs, assigns and/or successors in interest."

If this type of easement required for any variances within the proposed ACOD does not constitute an unlawful administrative "taking" by a government agency of private property rights without proper compensation, it would appear to come perilously close to constituting such an action, in my opinion. The case is even more clear, in this regard, in cases (see Sect. 27-667) in which more than 50% of the assessed value of any "nonconforming" holdings within the ACOD should be destroyed (for example, the houses devastated by wind in Dunwoody). In such cases, even the right of any rebuilding at all would be subject to the approval by the County Public Works Director and the Airport Director, according to the ordinance. (p. 14)

The proposed ordinance, in fact, includes a complex set of restrictions on all types of building construction (or rebuilding) within the areas deemed as having a 60 decibel or more level of airport noise exposure throughout the county (pages 7 11). Oversight of construction could, in theory, eventually be extended throughout the entire county, based on this ordinance as it is now written.

It is obvious that anyone with a perpetual airport avigation easement on their property would have great difficulties selling their property for what it would otherwise be worth, and might even have difficulty selling their property at all within the ACOD restricted area, which may eventually include as many as 10,000 or more homeowners.

These are only the most serious flaws in the proposed new ACOD ordinance, but there are other fundamental flaws, as well. One of the most significant of these flaws is that there is no precise specification, in the new ordinance itself, of the specific geographical areas to be included in the new ACOD. The current PDK Airport Director has indicated that the basis for the initial determination of the decibel levels surrounding the airport--which will be the basis for determining the area covered by the new proposed ACOD, rather than a set distance from the PDK airport runways, as is specified in the current ordinance provisions--is not based on any actual noise figures but rather on a five year old projection of the likely noise levels around the airport would be, if no mitigating measures had been taken by the airport, by 2001!

Note well, too, that by including the 60 decibel level areas within the ACOD, the proposed ordinance is going beyond even the FAA "suggestions," which only propose considering as affected areas those subject to 65 decibels and above.

Not only is there no clear indication in the proposed ordinance itself of the specific geographic areas to be covered by the new ACOD, there is no specification in the ordinance as to how those noise levels (which would determine the new ACOD area) are to be identified and verified; when and how the ACOD could be changed if noise increases (or, by any chance, decreases); and how citizens can appeal or overturn any ACOD decisions that may be taken by the Airport Director or other federal or local administrators to expand the noise contours of the Airport Use Overlay District, and hence the area of affected property owners, in the future.

In short, approval of this proposed ACOD ordinance by the DeKalb County Board of Commissioners would represent an unprecedented abdication by our elected officials of their own oversight over county zoning matters, within an unspecified and ambiguously defined area. Power to make such decisions would be turned over, instead, to an unelected set of appointed county and possibly even federal officials. Such an abdication of local zoning responsibility would, in effect, constitute giving a blank check to those favoring airport expansion to do anything they wanted to do, not only to the airport itself, but also to the surrounding non-airport properties. It might well be in the interest of airport officials to allow the surrounding properties to be degraded and then to acquire them after they had been degraded.

The preamble to the new ACOD clearly states that areas surrounding the airport must be made "compatible" with the airport (rather than vice versa). In this new preamble, there is not even the slightest suggestion that trying to make the airport itself more compatible, in any way, with prior residential and business uses would be a desirable goal. Given the official attitude in this ordinance that the airport and its interests are the only thing that matters, one can imagine the type of actions that might be taken after such an ordinance were actually approved. The genie could never be able to be put back into the bottle again by our elected officials, once they had thus abdicated their authority to unelected and self-interested bureaucrats.

So why is this overlay district being proposed? The current PDK Airport Director has given two reasons, both of which he has chosen not to elaborate upon. One is that the current ACOD ordinance "doesn't make any sense" to him. The other is that the current ACOD ordinance is somehow "in violation" of FAA regulations. However, when repeatedly asked to specify precisely which FAA regulations the current ordinance violates and where the written statements documenting such violations can be found, the current PDK Airport Director has consistently declined to give any specifics. Unless such specifics can be provided and convincingly addressed in well-publicized public meetings open to all the citizens of DeKalb County, this very damaging proposed new ACOD ordinance should be strongly rejected by the DeKalb County Board of Commissioners and by any other citizens of DeKalb County who care about both our property rights and our rights as citizens of this free Republic.

--Lawrence Foster
June 13, 2001

 

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