RADAR Residents And DeKalb Acting Responsibly
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.
Chief Executive Officer (CEO) Vernon Jones’
proposed Airport Compatible Use Overlay District (ACOD) would
require property owners to sign an avigation (air rights)
easement in order to make material changes to their property.
Under an avigation easement one gives up the right to sue for
damages resulting from aviation. The very need for a
noise related avigation easement is an admission that quality of
life is being diminished by PDK operations. It appears to
PDK Watch that the adoption of an ACOD is laying the foundation
for expansion – larger jets, more operators, greater runway
capacity, etc.
In many cases across the nation,
governmental avigation easements are purchased. The
Fulton County (Georgia) Commission Chairman has prepared a plan
seeking money to compensate residents near Hartsfield Airport
(where there is no ACOD) for lower property values and noise
mitigation. CEO Jones’ ACOD demands our rights just be
given to the County. It appears he does not care for
the rights of citizens nor the value we add to the County.
If our county commissioners adopt the ACOD, a property owner would be required to give a permanent easement, recorded with his/her deed, to obtain the required building permit for property improvement or repair. Some in DeKalb County regard this as blackmail! As one California airport watcher remarked, “Some might call this theft.”
Meacham Field in Fort Worth, Texas, has an
FAA-approved noise compatibility measure to soundproof existing
homes. The city will attempt to obtain an avigation
easement as part of a soundproofing agreement. It is not a
specific requirement as it is in the proposed DeKalb County ACOD.
In conjunction with the avigation easement discussion at the El
Toro (California) airport, a spokesman for the FAA indicated that
the only situation where avigation easements are recommended is
when soundproofing has been funded by the federal government.
All of this relates to the diminution of our
property values without compensation and at the
same time polluting the air above our homes with noise,
vibrations and fumes. A study performed under FAA contract
around the Los Angeles airport compared the value for similar and
moderately priced homes in a quiet neighborhood and in the noise
area and found “an average 18.6 percent higher property
value in the quiet neighborhood.” A study funded by
the Washington State Legislature concerning the Seattle airport
found that nearby cities would lose $500 million in property
values. It found that the same house in the immediate
vicinity of the airport would sell for 10.1 percent more if
located elsewhere. A certified real estate appraiser found
communities near major Southern California airports have a
diminution in value of 27.4 percent.
It is clear that property owners and DeKalb
would lose property value unless the ACOD is defeated. How
much value would be lost? Assuming there were 3000 homes at
an average home value of $250,000 included in the ACOD initially,
then a diminishment of 20% yields an average loss of
$50,000 per home or a total loss in real estate value of
$150,000,000 for homeowners in DeKalb. Since the
airport establishes the map of the overlay district and there are
no defined procedures for establishing, changing, or contesting
the impacted area, property owners could suddenly find their
property value diminished by its inclusion in the district.
RIGHT NOW - It is most important that
citizens personally speak to each commissioner and request his or
her assurance of opposition to any version
of the ACOD.
Contributions to F.O.R. DeKalb, Inc., may be
sent to: F.O.R. DeKalb, Inc.
c/o
Gary W. Diamond, Esq.
Hollowell,
Foster & Gepp, PC
1200
Harris Tower
233
Peachtree Street, NE
Atlanta,
Georgia 30303-2507
Following are answers to the questions
concerning the potential legal actions asked at the Community
Meeting about the Airport Compatible Use Overlay District (ACOD)
on February 21, 2002. Please contact pdkwatch@yahoo.com if you
have further questions.
Q:
WHY MUST WE "SUE" FOR INFORMATION AND DOCUMENTATION
THAT SHOULD BE "PUBLIC RECORDS"?
A: The Georgia Open Records Act (GORA) is the Georgia
state law version of the U.S. Freedom of Information Act
(FOIA). It ensures citizens the right to obtain
copies of most types of public documents and records.
It is subject to only certain specific exceptions. It
provides for a 3-day response time. It is
mandatory. However, the law does not provide serious
penalties for failure to comply. GORA requests can be
mischaracterized, misrouted or simply ignored. Frequently,
officials are evasive, obstructive, and even
antagonistic. Ultimately, the law provides for
legal action as the way to enforce the appropriate disclosure of
documents. (facts)
Q: WHO WILL CONTROL USE OF FUNDS DONATED?
A: The Board of Directors of F.O.R. DeKalb, Inc., with
Evelyn Brethour (404-728-0772) as treasurer, will be established.
F.O.R. DeKalb, Inc. (FOR OUR RIGHTS!) was formed primarily to
fund legal action to fight the Airport Compatible Use Overlay
District concept. The ACOD forces citizens to
surrender the right to claim damages caused by any future airport
activity, including any flight related practice or
incident. We are continuing to press for the release of
public records related to airport noise event data and safety
issues. We will continue to fight to preserve our quality
of life, to protect our property rights, and to promote open and
honest government with citizen
involvement.
Remember, donations to F.O.R. DeKalb, Inc. are not tax
deductible. This enables us to keep donor lists
confidential, and also permits us to continue to lobby for
political change.
Q: WILL FILING A LAWSUIT AFFECT WHETHER OR NOT ACOD WILL
COME BEFORE THE COMMISSIONERS?
A:
If you mean a direct suit against the ACOD concept itself, the
ACOD ordinance would probably need to be passed into law in order
for a lawsuit to challenge it directly. (opinion)
The authority and decision to place the ACOD ordinance on the
Commissioners' meeting agenda rests with the CEO. The
Commissioners consider and vote on agenda items. (facts)
However, an organized group of citizens who are committed to
litigating can exert a real political influence and have an
impact on policy formation. (opinion) For
example, our first lawsuit is expected to be to enforce ongoing
disclosure of flight traffic and flight noise levels so that
actual damages can be assessed and established. This
is a necessary foundation for any lawsuit that would seek to
prove diminution of property values or environmental harm.
Q:
WHAT IS THE CONSTITUTIONALITY OF THIS PROPOSAL? CIVIL RIGHTS?
A: For several reasons, serious questions of
constitutionality exist for the ACOD proposal in its presently
worded form: the proposal is vague and ambiguous, the ACOD
districts are only theoretically defined, the ordinance removes
zoning decisions from lawfully elected commissioners to mere
department heads with no accountability, the ordinance eliminates
the zoning appeals process currently in place, it unfairly takes
property rights from individuals without adequate compensation,
and it usurps an individual’s constitutional rights of due
process and equal protection. (opinions).
Q:
WOULD A CLASS ACTION SUIT FORCE THEIR HAND?
WHY DON'T WE BAND TOGETHER AND FILE A "CLASS ACTION
SUIT" AS TO NOISE, POLLUTION, QUALITY OF LIFE, PROPERTY
RIGHTS, ETC., ETC.? I WOULD CERTAINLY SUPPORT SUCH AN ACTION -
FILE A SUIT NOW! A PRESUMPTIVE STRIKE!!! WHO WILL BE
THE KEY LAW FIRM?
WHAT IS THE POSSIBILITY OF SEEKING CLASS ACTION STATUS ON ANY
SUIT BROUGHT ABOUT BECAUSE OF THIS? IF POSSIBLE, HOW DO WE
GO ABOUT GETTING THIS DONE?
A: A “class action” litigation is a lawsuit
brought in the name of one or more “named” plaintiffs
and others who are similarly situated. Like any lawsuit for
damages, plaintiffs must prove actual damages as a result of a
defendant’s actions. In a class action lawsuit,
several factors initially must be shown in order for a judge to
“certify” the class. These factors include
numerosity (the existence of many similarly affected plaintiffs)
and commonality of damages issues, such that allowing a class of
plaintiffs to sue as a group makes sense to the court in order to
prevent multiple trials to decide the same issues with common
damages. If the Court certifies the class, the lawsuit
proceeds in the name of the named parties, but for the benefit of
all potential plaintiffs who later choose to “opt in”
to the suit. Individuals who would “opt out”
would be able to file their own, separate lawsuits if they wish.
(facts)
A
class action lawsuit would be a useful vehicle to sue for money
damages and for diminution of property values, on behalf of all
similarly situated individuals who are adversely affected by an
actual, imposed ACOD system. It would not be
necessary to sue as a class merely to challenge the
constitutionality of an ordinance, or to sue to enforce GORA
disclosures of noise levels and flight activity. Suing
to obtain the noise and flight activity data is a necessary
foundation to effectively challenge the ACOD proposal
specifically, and excessive airport expansion generally. (opinions)
This will be our first legal action, and lawyers are being
consulted.
Q:
WHEN WILL A LAWSUIT BE FILED AND WHAT IS THE COST?
A: Costs for legal actions to challenge ACOD, to
sue under GORA to obtain the noise and flight activity data, and
ultimately to sue for diminution of our property rights could be
substantial. Our goal is to raise $1,000,000. While
we build the legal defense fund for our major legal action, we
will proceed with litigation to obtain the noise and flight
activity data. This will be the first legal action.
This information is a necessary foundation to effectively
challenge the ACOD proposal specifically, and excessive airport
expansion generally.
We need your ongoing help in terms of both money contributions and volunteerism. Please contact PDK Watch at pdkwatch@yahoo.com to find out how you can help!
PDK Watch makes
every effort to verify the information. We welcome
corrections.
Visit the PDK Watch
website at www.pdkwatch.org
for more information. Contact pdkwatch@yahoo.com to join
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