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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