PDK Watch’s purpose is to protect and assure the future of our established residential neighborhoods and quality of life in the thirty-plus communities around PDK.
Commissioners
Are Successful – ACOD Is Withdrawn from Agenda
At the June 26, 2001, Board of Commissioners regular business meeting three commissioners were successful in having the Airport Compatible Use Overlay District (ACOD) withdrawn from the agenda. It was improperly placed on the business agenda by CEO Vernon Jones’ administration. The proposed ordinance is a text amendment to the county's zoning ordinance and by law must be placed on a zoning hearing agenda (which includes public hearings), not a business agenda. A request to place it on a zoning hearing agenda can only be initiated by a commissioner or planning commissioner.
When it came up for consideration at June 26 meeting,
Commissioner Burrell Ellis (with a second from Commissioner Lou
Walker) requested that it be sent to the September zoning cycle
agenda. Commissioner Gale Walldorff said that the
commission's plate is full with moratorium related ordinances and
studies and they did not have the time to devote to reviewing the
proposed ACOD. Commissioner Judy Yates requested that it be
withdrawn from the business agenda. The county attorney
said the CEO is the only one who can withdraw an item from the
agenda. Commissioner Jacqueline Scott then said since it was
"illegally" placed on the business meeting agenda, it
was pointless to discuss who had the power to remove it. In
response CEO Vernon Jones said since the commissioners obviously
wanted it removed from the agenda he would do so.
From comments made by the executive
assistant and the county attorney, it appeared the administration
wanted the BOC to act upon the item thus setting it up for the
September zoning hearing cycle.
Problems with
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 since 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; see www.co.dekalb.ga.us/planning/index.htm
for proposed ordinance).
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, part C at www.aee.faa.gov/lupi),
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
It Is Time to Stop Fighting Fires and Form Good Airport
Policy.
Have you noticed that each time
the community addresses an airport issue it generally comes to
our attention after the issue has been considered, and all
too often, decided? Examples include the recent Airport
Overlay District, the increased weight limits at PDK despite the
ruling from the 11th Circuit Court, allowing the use of land
outside the fence despite a Board of Commission policy against
expansion, and allowing flightserv.com to use PDK for
unscheduled passenger service. This piecemeal approach
ensures the issue will be contentious, ensures airport interests
will always dominate over the interests of our community, and is
certainly not good for the residents in the area.
We have comprehensive land use
plans in DeKalb County. We have 20-year plans for many of
the services delivered by the County. Isn't it time to
develop a long-range plan for our airport so the Commission would
have a charted course, so the Airport Director is not continually
placed in a no-win position, so airport businesses can plan for
the future with some degree of assurance, and most importantly to
the thousands of residents affected by their decisions, so we can
move into the future with some awareness of what is planned.
We are tired of having the mantra
"you knew there was an airport there when you moved in"
serve as the policy base for our airport. The current
approach and defense does not do anything for confidence in our
government.
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