HomeMy WebLinkAbout20002539.tiff STATE OF COLORADO _
COLORADO GEOLOGICAL SURVEY !j� • o-:;? !
Division of Minerals and Geology -
Department of Natural Resources Iii }," '.,, ,;
1313 Sherman Street, Room 715 f f
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Denver,Colorado 80203 :::::::.:.Y.1" ;;!:.z.::::::::::::::
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Phone:(303)866-2611 -_?.:.�—.s- : :.
FAX:(303)866-2461 Di:I'ARTP:::<:N i. OF
NATURAL
€t S Oti-tCES
April 17, 2000
Bid Leven.
Co,e.ri J,
Grtg H Wal(I,
Mr. Kim Ogle rw,•,, .a•nn,
Weld County Department of Planning Services sib H,•I u I
1555 N. 17th Avenue p1 I°r``
Greeley, CO 80631 vii I "''"
sla; ,rnl„F,.
(FAX 970-304-6498) an, Fire(kir
Re: Carlson Farms Estates, S-507, ('GS WE-00-0014,Resubmittal
Dear Mr. Ogle:
Thank you for the submittal of plans for the above referenced subdivision. The proposal is a Planned
Unit Development for seven residential lots. The site is approximately 20 acres and the lot sizes will
range from 1.6 to 4 acres. The site will be served by public water and individual septic systems. The :lie
is fairly level except for moderately steep slopes on the southern portion of the site.
The submittal documents contained a geologic report done by Foundation and Soils Engineering, Inc end
is dated June 17, 1999. The report also indicates that the steep slopes at the southern end of the propel-Icy
may be unstable and development of this area should be avoided.
My last response outlined portions of Lots 1 and 7 which should be identified as "non buildable''. This
response was based upon the location of steep slopes as shown by the topography submitted with the
plans. In conversations with Mr. Carlson, it appears that the topography submitted with the application
may not be accurate and I delineated too large an area as "non buildable." The Natural Resources
Conservation Service Soil Survey of Weld, County. Colorado shows that the slope gradient between the
upper and lower terrace to be approximately 10 to 25 percent. As indicated by the geotechnical engineer,
steeper slopes(10 percent and greater) should be designated as "non buildable." In addition, grading tin
the steeper slopes should he avoided. If meeting Weld County road and driveway standards; access to the
lower terrace would result in significant grading; the county may wish to restrict development in the
lower terrace or southern portions of the site.
At some point in the process. an accurate location of the steeper slope area(non buildable or non
disturbance) should be provided and placed on the plat. If you have questions,please contact me. I can he
reached at (303) 866-3350 or by e-mail at karen.berry@state.co.us.
Sincerely, O
Karen A. Berry 2000-2539
Geological Engineer, P.G. N
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STATE OF COLORADO
COLORADO GEOLOGICAL SURVEY ;::M: :::;o-::rj.•,-''
Division of Minerals and Geology
f
Department of Natural Resources ,.dl Cl Cr linty Platlfllttg L'D�i! %l /
1313 Sherman Street,Room 715 " : :5:5:/.y-
Deriver,Colorado 80203 !: 1
Phone:(303)366-2611 r /{ :.i
FAX:(303)866-2461 1hH 2'.1 /000 I I3RTf N.f()F
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r ,. F. K _m RESOURCES
ESOUR ;I S
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April 18, 2000 � n �._ ii- I V q � 5)
Bill Owen,
(,r, r
(,ny; walCM1,
Mr. Kim Ogle I<r HMV,'ni„ ,
Weld County Department of Planning Services nrm,n.,.o B („
1555 N. 17th Avenue. IJi, si.Pin Dire,
Greeley, CO 80631 `^r•l r'».'«
Sta.' ,r
(FAX 970-304-6498) ector,.
a„r r�rea�,r
Re: Carlson Farms Estates, S-507, CGS WE-00-0014,Resubmittal
Dear Mr. Ogle:
Thank you for the submittal of plans for the above referenced subdivision. The proposal is a Planned
Unit Development for seven residential lots. The site is approximately 20 acres and the lot sizes will
range from 1.6 to 4 acres. The site will be served by public water and individual septic systems, Inc :ile
is fairly level except for moderately steep slopes on the southern portion of the site.
The submittal documents contained a geologic report done by Foundation and Soils Engineering. Inc and
is dated June 17, 1999. The report also indicates that the steep slopes at the southern end of the property
may be unstable and development of this area should be avoided.
My last response outlined portions of Lots 1 and 7 which should be identified as "non buildable"- This
response was based upon the location of steep slopes as shown by the topography submitted with the
plans. In conversations with Mr. Carlson, it appears that the topography submitted with the application
may not he accurate and I delineated too large an area as "non buildable." The Natural Resources
Conservation Service Soil Survey of Weld, County. Colorado shows that the slope gradient between the
upper and lower terrace to be approximately 10 to 25 percent. As indicated by the geotechnical enginiicr,
steeper slopes (10 percent and greater) should be designated as "non buildable." In addition, grading ur
the steeper slopes should be avoided. If meeting Weld County road and driveway standards; access to the
lower terrace would result in significant grading; the county may wish to restrict development in the
lower terrace or southern portions of the site.
At some point in the process. an accurate location (detailed site-specific topography) of the steeper slope
should he provided and placed on the plat as area"non buildable" or" non disturbance". If you have
questions, please contact me. I can be reached at(303) 866-3350 or by e-mail atkaren.berry state.co.us.
�lccrely.
Karen A. Berry
Geological Engineer, P.G.
MEMORANDUM
g_pc
TO: Weld County Planning Commissioners
COLORADO FROM: Kim Ogle, Planner : ` °
SUBJECT: Entry Road Cross-Section for Carlson Farms Estates
The applicant provided this sketch as part of his application. This information was inadvertently not
included in the last PC Packet of information mailed out. Mr. Honn, the applicant's representative
made reference to this sketch at the hearing on April 18, 2000. This sketch is provided for your
information.
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MEMORANDUM
Slot!'
TO: Planning Commission
ADO FROM: Kim Ogle, Planne '
COLOR
SUBJECT: Carlson Farms Estates, Z 541
The attached correpondence was received in our offices on April 26, 2000.
SERVICE,7[AM WORK,INTI(i5ITY,VIAL I TY
r � E1EY 1/ IP MILLI
HO. Box. 727'Gro /ey, CO 80632
970/356-9141 FAX 970%1552643
TO: Lee Morrison April 26, 2000
Assistant County Attorney
FROM: Mike Reisman(
Airport Manager
RE: Carlson Farms Estates - FM and CDOT Letters
Attached find letters from the FM and CDOT Division of Aeronautics concerning their
position on the Carlson Farms Estates proposal. These letters were obtained to provide
assistance in your research concerning the County's oblir.: Lions concerning thc: gr nt
assurances. You will note that both agencies have indicated the possibility of jeopardizing
future funding for the airport should the proposal be approved.
Also attached is a complete Airport Layout package, with all diagrams and land use maps
relevant to the airport. This is an unsigned set, but is current. Some of the maps are in
the process of being updated. None of the pending updates however are relevant or affect
the Carlson Farms Estates proposal. An updated set will be provided to Weld County upon
approval, which will likely be several months.
Please call me at 356-9141 if I can provide any additional information or assistance.
cc: Kim Ogle, Dept. of Planning Services
....................................
;;KY UN!GOM i 22 8i1GX1 'i3 I!@ 5.GX ;OM .31 GL_ '1UF ' ;hY'-; ' ._
•
STATE OF COLORADO
DEPARTMENT OF TRANSPORTATION
Division of Aeronautics
1. OT
5300 Front Range Parkway ,.
Watkins.Colorado 80137
303)261-4418 FAX(303)261-9608 -"
April 24, 2000
Lee Morrison, Assistant County Attorney
Weld County
915 10' Street
Greeley, CO 80631
RE: Weld County Planning Department Case No. Z-541, Carlson Farm Estates
Dear Mr. Morrison:
The Colorado Division of Aeronautics would like to take this opportunity to comment on the proposed zoning oh-mg=
to allow residential development within the Critical Zone for runway 9 at the Greeley-Weld County Airport As
identified within House Bill 1041, residential development within the Critical Zone is a noncompatible land use a Id
should not be allowed for the protection of the airport as well as the people and property below the runway app')ach
surface.
The Colorado Division of Aeronautics works with the FAA in determining where Federal and State Airport
Improvement funds would best enhance the local, State and National airport system. There are a numner of fa--tors
we take into account when determining which communities will be the recipients of these airport grant dollars,
however one of the primary factors is the local governments commitments to protecting the airport from
noncompatible land uses. Compatible land uses around the airport protect the investments made by the local sport
sponsor(s), the State of Colorado and FAA and insures future development and the unrestricted use of the airp:trt for
years to come. To reduce of the size of the existing airport Critical Zone or allow residential development withii this
zone would not be consistent with the FAA Grant Assurances signed by the City of Greeley and Weld County :^ hie i
require the airport sponsor to protect the airport from noncompatible land uses.
In the past five years the Greeley-Weld County Airport has received more State and FAA financial support thar anp
other airport in Colorado except DIA and Eagle. If the existing Critical Zone is reduced because of the relocatit n of
the Instrument Landing System (ILS) or if residential development is allowed to take place within the ex::;ting C iticel
Zone while the FAA, Aeronautic Division and airport management are planning and preparing to implement a Clobal
Positioning System (GPS) instrument approach for runway 9, future FAA and Colorado Aeronautical Board funding
for the Greeley-Weld County Airport will be jeopardized.
The Colorado Division of Aeronautics has already invested funds to develop the GPS approach for rurway 9 a the
Greeley-Weld County Airport. We are continuing to work with the FAA. National Geodetic Survey. anc CDOT I eid
survey crews to.compile the information needed to write the GPS approach procedure. Runway end survey
coordinates, as well as new obstruction charts will be developed latter this summer. Once this Information is
obtained, it will be forwarded to the FAA Flight Procedures Division in Oklahoma City to write the new BPS apl roach
for runway 9. It is imperative that Weld County maintains the existing Critical Zone dimensions for the protectil n cf
this new GPS instrument approach. For the many reasons stated above, the Colorado Division of Aeronautics
recommends denial of the Weld County rezoning request No. Z-541, Carlson Farms Estates.
If you have any questions or require additional information, please feel free to contact me at (303) 261 -4418.
Sindao *
ly,
Oct
Travis L. Vallin
CDOT Aeronautics Director
of TR DEN'v9cR AIRPORTS S n Sit"'r . F
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. DENVEE COL fl 33.3. ..i:3..:3
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FEDERAL AVIATION
ADMINISTRATION
April 24, 2000
Lee Morrison,Assistant County Attorney
Weld County
915 10"'Street
•
Greeley, Colorado 80631
Dear Mr. Morrison:
Weld County Planning Department Case No. Z-541
Carlson Farris Estates
We are taking this opportunity to indicate FAA's concern over the rezoning request as identified in Case
No. Z-541. Compatible land use in the vicinity of an airport is an important part of rn ii taring good
community relations. Generally speaking residential use in the approach area to a runway ir not an
accepted land use.
Over the past several years,the City of Greeley and Weld County have enjoyed FAA grant funding in
the multi-million dollar range, for planning and construction projects at the airport,which has trade.the
airport an excellent facility for the community. In the planning of the airport the local bodice of
government,through the development of the Airport Layout Plan(ALP),have also made the
commitment to provide for compatible land uses around the airport. The ALP which is an approved
document by the City, County,Airport Authority and FAA contains the Land Use Plan for the vicinity
of the airport. The Land Usc Plan states that residential uses are incompatible if located in the Critical
Zones off the ends of the runways. The identification of Critical Zones results from the 1973 Colorado
House Bill 1041 legislation.
The subject property lies within the Critical Zone on the approach to the east-west runway. The
proximity of the property to the existing airport will make it difficult for housing to be avoided by the
overflight of aircraft. Allowing residential development in the Critical Zone is not consistent with the.
City and County's grant assurances. We recommend a denial of the rezoning request so that future ATP
grant funding is not jeopardized.
Sincerely,
O7, fill2,/
ames M. Fels,P.E.
State Planner, Colorado
cc: Airport Manager,Vallin, Lobne
EXHIBITS 28 THRU 34 ARE
OVERSIZED MAPS
SEE ORIGINAL FILE
y
Airports Sarah M. Rockwell, Esq. & John E Putnam, Esq.
"Airports: Balancing Economic Development and Community Interest:
Federal Regulatory Scheme; Land Use Compatibility Issues;
Air Quality; Noise; Water Quality; Traffic"
presented by
Sarah M. Rockwell, Esq.
John E. Putnam, Esq.
Cutler & Stanfield
Denver
Competing Community and Airport Interests
A. As airports expand and communities around them grow, issues of airport land use comb ttbilly,
become more acute, more complex and more litigious.
B. In all of these debates, the parties usually have a basic understanding that an airport can be an
enormous economic generator,but also produce significant negative effects,particular'cH in i n ris o:.
airport noise and air pollution.
C. In dealing with this difficult contradiction, different parties have different goals and uueres.s
Goals of the airport:
a. Insure efficient operations
b. Insure safety
c. Limit as much as possible restrictions on operations
d. Limit liability for takings
e. When city is airport proprietor. promote developmentwith spin off benefits t) the
City
2. Goals of the surrounding communities:
a. Reduce as much as possible the impacts on them of airport operations, including:
Noise
Air pollution
ii. Ttafnc
b. Insure safety ar
c. Take advantage of economic benefits of proximity to airport.
Denver, Aurora and others are beginning to reap significant ecoromie
benefits of the newly located Denver International Airport("DIA").
CLE INTERNATIONAL • PAGE I-1 ■ LAND LSE LAW
Airports Saran M. Rockwvll, Esq. &John E Putnam. Esc
ii. Rosemont. Illinois. Rosemont is a model for a number of other :.nia 1
communities located at the"front door" of major airports. Rosernor t h:.s
used its location as a platform for significant high-value development i I
convention centers, hotels and offices.
d. The communities' own interests may often be in conflict between the ecorom:c
benefits of an airport and community concerns about environmental and qualit% .)f
life issues.
D. The debate usually involves the balancing of these goals within tie airport vicinity. See Append:r
A. Accompanying the debate is the fact that federal law limits airport proprietors'ability to cuntr.)1
airport noise. Irony: Supreme Court has said that airport proprietors are liable with respect to airpc i 1
noise,but FAA retains control over airspace. operations times and basic airport operations. Crigis
v. Allegheny, 369 C..S. 84 (1962).
E. Compatibility is a two-way street. Both communities and airports have a role in en:.urinz
compatibility of airport operations and communities.
II. Community Steps to Ensure Compatibility of Land Use; with Airport Operations
A. Allowing new incompatible land uses can increase the number of people affected by aircraft noist:
and other impacts.
B. Land uses outside of an airport can also have profound impacts over time on airport operatic ns.
1. Tall structures may pose a threat to aircraft using the airport.
2. Some land uses may create light,dust,smoke or other en•-ironmental elements that in+.erfccr•
with safe air navigation. For example, FAA and DIA were concerned about a prcpo≤ed
automobile racetrack near the runways at DIA.
3. New or existing residential, school, religious or other noise-sensitive purposes nt:ar h
airport may limit the political or environmental feasibility of future capital development c r
increases in operations.
4. Nearby residential and other development may increase the potential takings expos are : r
an airport.
C. Allowing residential and other sensitive development in areas affected by the airport can create
political and other challenges for local governments who must deal with constituents upset by aircra t t
noise,traffic or other impacts.
D. Tools for enhancing compatibility with airport operations
1. 14 C.F.R. Part 77—Hazards to navigation
• a. Part 7 establishes standards for determining onstructions to air navigation
b. Part 77 requires notice to FAA prior to construction of any oojec: that m:giit
obstruct air navigation. Regulations specify what types of construction woulc he
covered and where. 14 C.F.R. § '7.13.
•
CLE INTERNATIONAL a PAGE 1-2 • LAND USE LAW
Airports Sarah M. Rockwell, Esq. & John E Putnam. Esc`..
Any construction mcre than 200 feet above ground level;
ii. Any construction wi-:hin 20.000 feet of a runway at .1 major .1:rpc n if the
construction will invalve breaking an imaginary plane with a 100 1 slope
emanating from the runways;
iii. Some construction near smaller ni iways; and
iv Construction on airports.
c. The federal regulation does nit by itself rejuire anything other than nc tice.
d. Decisions regarding approva. of the obstruction are left up to local corn enmity
(However, if an airport proprietor is owner of property, the airport can lose federal
grant monies if hazards are approved.) Many states and local :ommunitics around
airports have imposed substantive restrictions that relate to Part 7. Si!! e.g..
Adams County Zoning Code, 3.600 et seq.. Aurora Zoning Cone § :4f-15
e. If a tower or other hazard to navigation is not avoided through land use re uiatior.
in the home jurisdiction, the airport must either:
i. Accept limitations to he airport's airspace, such as restrictions on .uaway
use: : r
Purchase the obstruction or rights to create the obstruction. C oiortido law
provides airports with the power to condemn airspace rights. to present or
remove airspace obstructions. C.R S. § 41-4-108.
2. 14 C.F.R. Part 150-Compatibility with airport operations
a. FAA adopted the"Part 150"regulations adopted pursuant to authority prov ded in
Aviation Safety and Noise Apatement Act of I979. The Act directed FAA to
develop a uniform scheme for noise measurement.
b. Part 150 sets federal standards for compatibility of land uses with airport c.per.itions.
See Appendix B. For example, FAA deems single-family residential uses iti areas
receiving average day-night lerel noise exposures below 65 decibels ("dB") to be
compatible with airport operations, but incompatible above 65 dB. While these
standards are not binding on local communities,few have established more rigorous
standards.
c. Part ISO provides for voluntary creation of a:ioise compatibility plan that set; -orth
measures that the airport operator or local communities have taken or proposes to
take to reduce existing incompatible land uses and the prevention of add tional
incompatible uses within the area covered by the noise exposure maps. c ect oil Ill
of this outline considers some cif the steps airport proprietors can take at in iroort
to reduce aircraft noise. Measures that airport proprietors and comrnn lities can
undertake outside of an airport include:
Requirements for sound insulation in new structures built iii the noise
impact zone;
CLE INTERNATIONAL ■ PAGE 1-3 • LAND USE LAW
Airports Sarah M. Rockwell, Esq. &John E Putnam. Esq.
ii. Sound insulation retrofit programs;
iii. Zoning restrictions on sensitive land uses in the noise impact zone an
iv. Purchases of vacant land or existing incompatible uses in the noise irua.;t
zone.
d. FAA approval of a noise compatibility plan makes a airport proprietor eligible for
federal funding of certain noise attenuation activities and offers some protec..t„n
against suits for damages from property owners impacted by aircraft noise
e. Part 150 specifically leaves local land use decisions up to local comm:t11i:ies and
encourages communities to come up with innovative measures to respond to heal
needs.
f On April 3, 1998,FAA issued a final policy providing that it will approve under Part
150 only remedial noise mitigation measures for existing noncompatible
development and only preventive noise mitigation measures in areas of potential
new noncompatible developmer.t. The policy is designed to further encourage
airports and communities to take actions to prevent new noncompatible development
and not fund future remedial measures where new noncompatible developmeni has
occur-e .
3. Zoning and other nonfederal approaches
a. Airport Overlay Zones and other restrictions. These provisions ar_often dependent
on cooperation from communities other than the airport proprietor to reach all of..he
areas that may affect or be affected by an airport.
i. Overlay zones typically designate uses that are permitted within differmt
contours of the airport. Zones usually extend out to the DNL 6: •iB
contour.
ii. Restrictions tend to follow federal noise compatibility guidelines set ou' in
Part 150,i.e.,with no restrictions below DNL 65 dB. Some communities.
e.g.. Aurora, Clark County (Nevada), Loudoun County (Virginia), nave
taken them further. See. e.g., Aurora Zoning Code § 146-1585.
iii. Restrictions may also be based on Part 77 height zones or specific areas, of
high safety risk immediately beyonc runways called runway ptote:t;on
zones for civilian airports or accident protection zones at military facilities.
iv. The difficulty is in establishing the zones. Do you base them on existing
noise patterns (which are known) or predicted patterns, {hid ire
speculative" How does-.he airport provide flexibility for its future growih?
How does the property owner,on the other hand,protect.his intertust i t not
overly restricting land uses for some projected unpredictable future airport
activity? This is particularly a conce-n currently because of the mandated
switch to quieter"Stage 3"aircraft, which is making contours shrink in the
short run(1999-2000). However,cm tours are likely to..rtpand at,ain atter
2000.
CLE INTERNATIONAL • PAGE 1-4 LAND L'SE LAW
Airports Sarah M. Rockwell, Esq. & John E Putnam, Esq.
b. Disclosure requirements
Disclosure provisions require property owners or de velopers or Loth to
disclose airport noise to prospective purchasers iflocated within me verlay
district. See, e.g., Aurora Zoning Code § 146-1587(c) tatAppendi . 11).
Disclosure provisions are designed to discourage new constnietnnn ir.noise
impacted areas as wel' as purchases of existing homes by peep e aaa , are
not aware of airport noise.
This type of obligation is easier to mpose in areas where there art no or
few existing homes. Once you impose such an obligation its areas with
homes, you have to decide whether to impose on new home:.. e.ti;sing
homes or both. Imposition of this requirement on existing ho net v.nets
often leads to significant political opposition from those who would lave
to comply with the disclosure opligation. Homeowners are often
concerned that the value of their properties will be diminished.
iv Some communities choose to provide disclosure in other ways, ine tiding
state real estate disclosure laws. For example. in I9S7 Raleigh-D irnam
International Airport :tent notices to 9000 property owners near airport
regarding potential aircraft noise impact. Property owners were then
required under state teal estate disclosure law to disclose this iat.t m
prospective purchasers.
Under Colorado law,homeowners must disclose latent cefects wL en:e;ling
a home. Airport noise is not specifically included.
c. Avigation casements
Avigation easements piovide for the right to conduct overflights( fai-craft,
the right of an airport :o clear airspace obstructions (especially trees., or
both. See Appendix D for example.
Avigation easements are usually either purchased by airport or obtai ted as
a condition for airport-funded sound insulation or a discretionary aplrival
in an airport overlay district. See, e.g.,Aurora Zoning Code§ 14o-I`81)h)
("An avigation easement with the city as sole grantee shall he couve:icd to
the city by any person subdividing lands or initiating construction t 1 any
structure on already subdivided lands within the airport influence arts").
iii. There are some questions about the legality of requiring an ivit ation
easement in connection with discretionary approvals after //ollzir t.
Calirbrnia Coastal Commission,483 U.S. 825 (1997), aid Do/en i. ( iry of
Tigard. 114 S.Ct. 2 (9 (1994). Property owners could ir_'te 'n it a
requirement for an easement in exchange for a local discretionary land-use
approval is a taking because ofa lack of nexus or proportionality T hers are
no Colorado cases on point.
iv. There are other issues relating to avigation easements, including he :cane
of the avigation easement. For example, would an a✓igation rastnient
obtained when an airport had 1000 operations per day apply when there are
CLE INTERNATIONAL ■ PAGE 1-5 ■ LAND L'SE 1:\W
Airports Sarah M. Rockwell, Esq. & John E Putnam, Es.i.
2000 operations per day? What happen when an airport :supports are!r
and louder aircraft? To date, there is very little judicial guidance on the e
subjects.
d. Sound attenuation
i. Local codes often require new homes in an airport impact zone to inclu:lt'
attenuation measures designed to reach certain interior noise levels. The.;&
requirements can be imposed through building codes. E.g.,AuroraZoni.:t
Code § 146-1585(cf.
ii. It is much easier to impose sound attenuation requirements or nt v,
construction than to require either retrofit of existing construction or nt
attenuation for remodeling or add on.
iii. Sound attenuation is only effective insice a building.
iv. Community interests or affected property owners may question resiticti
of requirements only to areas of aircraft noise. Homes near highways a u:
other noise sources may be exposed to comparable average levels of noi:.c
4. Proactive measures by airport or communi:y to encoura;_e compatible uses
a. Land acquisition
i. One effective strategy for airports and local communities — if thy cai:.
•••• afford it — is to purchase as much vacant land as possible )etc:re
development occurs on it. DIA is a good example of this approach -oi.i:
64 residences were located within the DNL 65 dB contour as of las:yen
This compares to thousands of homes within the DNL 65 dB contours a
other airports, including roughly a thou.,;and just at Centennial A irport.
ii. Las Vegas McCarran Airport is another example of an iirpor. :nat l.a:
purchased land to be used for vacant space, commercial developrent a•
other purposes.
iii. Airports can obtain some limited federal funding for purchasine land t.,
remove or avoid incompatible land use:;.
b. Property development
i. Encouraging the development of compatible land uses can go hand i'i fund
with proactive land acquisition. Airports or communities surround:n4
airports can acquire land and promote its development for compatible use;
—e.g.. industrial and commercial uses that rely on or benefit from pro Kim it,
to airport.
ii. However.airports must be careful about the use of airport funds to racilitatc
development. Airports would threaten future federal funding (and expose
themselves to expensive compliance actions)if they used airport funds tier
general economic development without a direct relationship to airport
purposes.
CLL INTERNATIONAL • PAGE 1-6 ■ LAND USE LAW
Airports Sarah M. Rockwell, Esq. & John E Putnam Esq
[II. Airport Steps to Enhance Compatibility with Community Land Uses
�.. Conflicts about the compatibility of airport operations w ith local communities are uhi ;t.itous
nationwide and frequently bitter.
B. Severe airport effects can lead to takings, nuisance and trespass litigation.
1. As noted above, the U.S. Supreme Court has held that local airports will bear the b nint of
"takings" liability related to airport operations. Griggs v. Allegheny Count;:, 359 `: S. 84
(1962).
2. Further, the Supreme Court has determined that property owners can make a c:rse for
"takings"liability based on aircraft flights that significantly interfere with the use ofp••operty
and/or intrude upon the airspace immediately above a property.Causbv v. United Stare..:.,328
U.S.256(1946). The Court limited the ancient doctrine that a property owner has cca olete
control of the airspace extending upwards from a property infinitely into the he:ave:t:
3. A 1998 Colorado Court of Appeals case examined the application ofCoiorado"takin,;� 'and
"damaging" law in the context of aircraft overflights. Thompson v. City and Co it t;'
Denver,958 P.2d 52$ (Colo. App. 19 '8).
a. Under Colorado law, ownership of the space above land or water is vestec in the
owners underneath,subject to the right of flight of aircraft. Id..C.R.S. 41- 1 .107.
\ v
• b. Aircraft may make use of the federally defined"navigable airspace": abo✓e50 feet
in congested areas or 1000 feet in noncongested areas. Thompson,958 ?.2d II 528;
4e) U.S.C. F. 40102. 14 C.F.R. § 91.1 19(b)-(c).
� •Y
c. "Hence, for Fifth Amendment purposes, on y frequent and low flights by aircraft,
{,y directly over private land, below 500 feet [above ground level], •hat cause
• substantial,direct and immediate interference with the property owner's';njc v~nent
and use of the land, are taking;." Thompson, 958 P.2d at 528.
d. The Court of Appeals found that certain landowners' claims against Den.•e- for
overflights to or from DIA were properly dismissed where the plaintiffs tail'd to
show low and frequent flights below 1000 feet. The court also rejected phi miffs'
"damaging" claims, finding that the plaint;fTs had not shown that the/ st.fiered
damage that was "different in nature from, and not merely greater in degrc :han,
that suffered by the general public." Thompson, 958 P.2d at :528. This cr iaFes a
very difficult standard to meet for property owners not suffering direct overtli.thts.
4. A recent Colorado Court of Appeals case reversing the dismissal of a complaint re2 a ling
overhead power lines suggests that nuisance and trespass claims are at least theoreti .ally
viable in the airport context. Van Wyk v. Public Ser ice Co., 1999 Colo. App. 1_EX ` 18 i
(June 24, 1999). See also. Restatement of Torts,Second.§ 159(2)("Flight by air'.raf i7! the --._
air space above the land of another is a trespass ,f, and only if, (a) it enter; int( the
immediate reaches of the air space next to the land, and (b) it interfere;substarrtiail with
the other's use and enjoyment of the laid."); SA Arr. Jur. Aviation § 4(simiiarr
5. Federal law provides airport operators a limited defense against liability for aircraft noise
damages when an airport publishes an )fficial map showing areas of noise impact a-.ic a
CLE INTERNATIONAL ■ PAGE 1-7 ■ IAND USE I AW
Airports Sarah M. Rockwell, Esg. & John E Putnam, Eq.,
plaintiff purchased his or her property after publication of the map. 49 l;.-S.C. § 4"i0ti a
14 C.F.R. § 150.21(f).
C. Airport operations can also lead to significant political and legal opposition from commanity grortps acid
municipal entities. Generally, responsible airport operators seek means of reducing the imnac. of the
airport on neighboring communities to avoid these problems.
1. 14 C.F.R.Part 150. As discussed before,Part 150 provides a tool for some airport or er a ors
and communities to reduce airport impacts on neighboring communities.
a. Part 150 provides the ability for airron operators ta qualify for federal funding to de:ray
costs of sound insulation and propery purchases to remove incompatib a uses.
b. Part 150 identifies other potential means of reducing the impact of noise cm
neighboring communities,including changes in aircraft flight tracks.capital proj et is
(sound walls or beans), curfews or other measures.
c. However, most of the means of real noise impact reduction — especially n 3i.se
abatement flight tracks — require. cooperation from airline pilo:s and a;t tn.f is
control at the FAA. This cooperation has proven very difficult to obtain in prac!it C.
because airlines and the FAA are often more concerned about the competing
priorities of efficiency, capacity and aviation safety.
d. As discussed below, local use of mandatory curfews, aircraft noise restricti ans and
similar measures are usually difficult or impossible to implement.
2. Airport Noise and Capacity Act of 1990 "ANCA"). ANCA requires air carriers to phase
out the noisiest large jet aircraft from their fleets by thy,end of 1999. Air carriers can alio
meet this requirement through aircraft modifications that will meet the star.dards for aircraft
noise, a practice known as"hushkittting." This phase :iut of so-called"SKage 2"aircraft is
leading to significant reductions in noise at airports around the country.
a. This technology-based program comes at a .:ost. ANCA made it much more
difficult for airports to implement measures to control the hours, numbers ar ctt:er
aspects of aircraft operations using the quieter "Stage 3" aircraft. A: oiscu;s
below,FAA's regulations implementing ANCA(the"Part 161"regulation;)creme
a formidable barrier to local control of noise.
b. ANCA has almost provided the maximum benefit from a noise perspective. liter
the phase-out of Stage 2 aircraft later this year. there are no required technological
improvements. Thus, barring changes in law and/or technology, average noise
levels near airports will begin to creep up again as the number of aircraft operations
increase.
D. As noted, there are significant federal obstacles :o local control of airport operations, even b: an
airport proprietor. As a general rule,once an airport facility is :n place, it is difficult to t.orrtro1 now
it will be used and thus its impacts on local communities.
Federal law limits local control of noise and air pollution through limits on scheiulcs or
other aspects of aircraft operations.
a. The pervasive role of federal regulation ofaviation persuaded the Colorauo Supi erne
Court that the City of Boulder could not prohibit "banner" flights above the 3;ty,
CLE INTERNATIONAL ■ PAGE I-8 ■ LAND USE LAW
Airports Sarah M. Rockwell, Esq. &John E Putnam, Esq.
citing a case from the United States Supreme Court holding that a . iV coil I not
enact legislation that attempts to restrict air(raft noise. Banner Adverti.sfng. l,:c. v.
City nfBoulder,868 P.2d 1077(Colo. 1994) citing City of-Burbank v. 1 o
Tm'ninal,411 U.S. 624 (1973).
b. ANCA restricts the ability of airport proprietors to impose"airport noise ur a cess
restriction[s]." 49 U.S.C. §47524(c). ANCA directed FAA to develop regula!iorts
detailing the circumstances under which such restrictions may be ahowed. AA
promulgated such regulations in 1991 in Par. 161 of Title 14 of the Ctode off e feral
Regulations.
i. Part 161 allows airports to restrict operations of Stage 2 aircraft or.11. if it
prepares and makes available for public comment a study of the proposed
restriction that considers the costs and benefits of the restriction.
alternatives to the restriction and comparisons of the costs and benefits of
the alternatives. 14 C.F.R. Part 161, Subpart B.
ii. Part 161 allows airports to restrict Stage 3 operations only ii all (.ir.:raft
operators at the airp.)rt agree to the restriction or the operator can
demonstrate to FAA's satisfaction hat the restriction meet:, a numb n. of
difficult public interes tests. 14 C.;=.R. § 161.305.
A. The requirements are difficult enough, and FAA ha:; bete r so
resistant to restrictions, that no airport has succeeded ;n im!1c ;ing
new access re:trictions on S tage 3 aircraft.
B. However, there are some :ndications that FAA .nay, not Le as
opposed to Part 161 applications as it has beer..
Part 161 provides some scheduled grandfather exceptions fie n. its
provisions for restrictions that were in place prior to November 5. 19'it 14
C.F.R. § 161.7(b).
2. Federal law limits local control of commercial operations or other categories of a'.it tion
(including helicopters).
a. The issue of whether a smaller airport can bar use of an airport for sche.ii,led,
commercial operations has been gaining increasing attention. Centennial Airport
has been at the center of one of the fights over this issue. The Airport's location and
facilities have attracted the attention of entities interested in initiating comrr.erciaJ
service. However, the Airport has sought to block such service due to community
concerns about possible increases in noise, traffic or other problems.
b. Airports that receive federal aia or collect Passenger Facility Charges must make a
contractual assurance to FAA that they will lot discriminate among categoi ie:; of
airport users. 49 L:.S.C. § 47107. Accordingly, FAA has taken the position that
Centennial and similarly situated airports cannot bar possible commercial ser••ice
if it allows ser'ice by similarly sized private or charter aircraft.
c. Noncompliance with FAA grant assurance: can be very expensive :o airports.
possibly requiring refunds and/or stoppage of federal funds. Thus. 'AA has
considerable leverage over most airports. FAA has determined that Centennial
CLE INTERNATIONAL PAGE 1-9 . LAND USE LAW
Airports Sarah M. Rockwell, Esq. &John E Putnam, EE q.
Airport can be stripped of its eligibility for fi.ture federal funding ba;e.t on it•
decision to bar scheduled service. Centennial E..pressAirlines v.A..-upahoc Cou u •
••• Public Airport Authority, No. 1ti-98-05 (FAA Dec. 23, 1998). In a tontr...r:
decision, the Colorado Supreme Court has held that Centennial Airport's .:o•cis o;i
was not preempted by federal law Arapahoe ::.'ounty Public Airport Autl'orir• .
Centennial Express Airlines,Inc., 956 P.2d 58" (Colo. 1998).
d. Similar disputes arise over helicopter operations from airports. Eeiicopters otte
disturb more people than jet operations because of the nature of helicopter flign s
and noise. While the U.S. Court of Appeals for the Second Circuit has held that
helipad proprietors have some power to restrict helicopter operations. N.rtiori,.l
Helicopter Corp. v. City of New York, 137 F.3d'?1 (2nd Cir. 1998),the court did m it
consider the nondiscrimination assurance.
3. The Clean Air Act preempts any state or local attempt to regulate the emissions of peg lots :its
coming from aircraft. 42 U.S.C. § 7571.
4. Federal Aviation Administration guidance limits the ability of airports that receive sny
federal assistance to fund impact fees and mitigation. Federal statutes and FAA guiidant e
prohibit airports from "diverting" revenues from airport purposes to general govermc nai
purposes. 49 U.S.C. § 47107(a); 64 Fed. Reg. 7,696 (Feb. 16, 1999). FAA has receuiy
interpreted this provision to disallow airports from paying impact fees. mitigation cost, or
similar measures unless directly required by some federal,state or local law as mitigatior f:it
the environmental impacts of a particular capital or other project.
E. Because of these constraints on the local ability to control a facii.ty once it is built,airport opnon.:nr.s
have focused on stopping, slowing or "down-sizing" attempts by airports to improve cal'i+.►I
infrastructure, especially the development of new runways or u:rminals.
1. Federal environmental laws
a. National Environmental Policy Act("NEPA"). NEPA requires federal sgencio s to
take a "hard look" at the environmental consequences of major federal actin's.
While NEPA is a purely procedural statute and does not require an agency to .aKe
steps that are less environmentally damaging, t can pose a signif.cant obstacle :or
some projects because it takes time to comply and can increase 3r focus poii-ii .il
opposition to a project.
b. Clean Air Act Section 176 ("conformity"). 42 U.S.C. 3 7506. The"conformity"
provision of the Clean Air Act requires any federal action — including airport
funding,siting or other approvals —to"conform"with State Implementation Plans
("SIPS")for the attainment of federal ambient :►ir quality standards. This .rea.e• a
potential substantive limit on the ability of airports to grow in some areas.
c. Other federal environmental law:;can be imp:rtant at some airports, inc.uiinl; -he
water quality and wetlands provisions of the C lean Water Act ari•i the Endangered
Species Act.
2. State and local provisions
a. Zoning and land-use provisions. Some communities around the country have sought
to stop or affect airport expansions through the use of zoning and other local powers.
CLE INTERNATIONAL • PAGE I-10 art IANDTUSE ,.AW
Airports Sarah M. Rockwell, Esq. & john E Putnam, Esa
Although the record of success in such attempts is not consistent,some romrn unitic
have had some success, incliding the Cih• of Burbank.
b. Limitations on condemnation power. In a number of states, local uri,eiction
opposed to airport expansion have been able to gain leverage by leaving
condemning land that an airport would need for expansion. In states with a "prim
public use" limitation on condemnation power,such a move canal least ter-root-art
thwart expansion plans.
3. Agreements between communities and airports. In a number of cases, includi us DIA,
Cleveland Hopkins Airport and the Burbank-Glendale-Pasadena Airport, communities am
airports have settled their differences through agreements. See, e.g., Attachment - FAA
still argues at times that these agreements are subject to Part 161, the nondiscrirrnnatici
assurance and other provisions. Nonetheless,these types of creative agreement;of'e❑ aft,
the best hope of addressing otherwise intractable community/airport disputes
a. The noise-limiting provisions of the DIA settlement have recently beer the s abjeci
of litigation between Adams County and DEA. Adams County has argued that DIA
is in violation of specific noise limitations contained in the settlement.asreer,ent that
led to the construction of DL a.
CLE INTERNATIONAL ■ PAGE I-11 • LAND USE I AW
Airports Sarah M. Rockwell, Esq. & John E Putnam. Esq.
Appendix A
Reprinted with permission from Urban Land
April 1998, Volume 57,Number 4
Sharing the Wealth from
Airport Expansions {epnnted with permtss on frorn the publisher
Expansions )L1-the Urban rand 1,stttute
1023 Thomas Jefferson:it..N.w'
Nashin,ton.DC 20007-5201
7 henever a :.aior airport tnuriry needs,the cities r_eogruzed that the•'
sees to expand, the sur- could agree on an airport expansion p'la'n
rounding cor...•-iunity be- that met roost of Geveltr.d's airport Seals
conam embroiled in a hest- while allowing Brook Park to relate en-
ed debate over qualirr-of-lift does economic and cor znuniry develop-
issues,particularly noise. Etc,and se, ty.To- .went oppomr.nitie
day,this debate is quirky broadening.Cash- CL._is a hub for Continental Airiine and
strapped comrauclei:s are bevnning to rec. the 34th-ousiest airport in the United Stir
ogniac what airport operators have renown for In 1992,Cleveland announced plans to expand
years:airports offer e-e.zordinary economic the airport to meet antis aed de land for the
opportunities,both for airport operators and ne m 20 ymrs and to allow for direct interna-
for their neighbors.Aged with that knowi- aonal flights.Cleveland's original plan would
r:::. .. YrrMYiii`._ ....A -
r ::.::v.' ter..rr . - - �.�® v. •..2r. �rPn.7bti ....
.......... f ti'. -�1 y it ar w• .•�;'�a �j�+�r�.7�1.�s -
"ar'{:•:"-}::.:.:r.-:::�:..._:•`�_.}f aka
•_.....:...r:v:;:::- :ti-;'�}::: }:r .. ; '� "'tip.. ' .; f --
•;_4.=:= .:':..--f '�`=f rte!-- • _.• ,.-4;,, st- -,:•.•. t
...:•-•:•:-:•:.{ •
r � ,, -�T <.f(1,•yf+r .. `." :' .F�-'Y: t.v'r .
• '{ y .', '1•li�•yl,. Y -.!. .f\r.' ��.. r rf•e.)Y;
.•� r r ;t Y)XAr.::• ..{ .:✓'rCv-Jlcatl�� ,' { x.
Lon,-terrr,test+a x2 a ptiGe a"'r"`n are atrroretcxd₹ns ftroca l'arie,Cha&s Irr-taticeizi Eayv
C..wpzr,a 2S ziiliose-scsrzae•iaoi crItit6on wad csteiaaera®z Cana 'ert•...,edtr:et+, =$';ac t to •
Cirrtla!ad-E'.oW :.^5srxaOna:_keine,iadnct additional cooringer~a4.iirdsrstal,am(RAD sozm
edge,<chum:nities debating airport errpan- have dmenored r identia.communities and
sioos not only are eeeciag assurance regard- eliminated=mimic development potential
ing tzditionai quality-of-life concerns.They for Brook Park_a city of 30.000 irumediatee''
also are working to protect and expand their adjacent to the airport.Br sok Park is home zo
economic development opporanitic, the r ationai fsposin-o Center(I-X Czis-
ihe recent uatpre-..edertee ogre•;cent oe- ter).a 2_.i ma:ion-square-foot facility that is
tween the cities of Cleveland and Brook Panic. one of the largest a thibioon and conk.sc
Ohio,concerning the expansion of Cleve- facilities in the country oral a major=nom-
land-Hopkins Internanonai Airport(Cl) is generator for the reOre..For more than 13
shows how these debases an be nansformed nears,Brook Park has been pursuing an em-
into producrive parmerships between an art- aomic development strategy that ml m!ad-
port and its neighbors.After years of heated vantage of the I-X Center and the city's!arm-
Gdgauon over airport expansion and corn- irnity to the airport and the adjacent NASA
CLE INTERNATIONAL • PAGE I-i 2 a LAND USE I AW
Airports • Sarah M. Rockwell, Esq. &John E Putnan:, Esq.
•
A snrxIst aviermint botivom+the cities of Ckvel.r.!anc 9 ok Park
thacgel c1t b ondaeirs to 2 ow Cleveland-?tog!kina t *:�oa4:liredrt . sr-F.;_ r'�,..--.7• K..3
?et-past e1 4'.z EZ2o52o;oats and`.a enabis A'a 1 f' ".;eo!Ate -...,./,_ , •1 :'.—i^y. '-
;!:_ j teosterric 7'.G hatsprezit;•'iertio"`pmert gr:a..^�/y-:Dr:,Zn2;S!diC.?te '_"""+" ...........7.40%„.....,./
"�:`-^ ;'�`, -�7` "'_' fr
:: � :be conned t'�XSE?Roe!:Park to z7r.!a£Zw;X14 3: e; c ~ir '-^i/r.^---s.—;is" ' . fi '; e
tag X3:t;which eaten*.atom;9sock;aa ;? 'Veyonr! .. c! ' I c.::_:_,.� �_ _ ';ci 1'
tbir v I eyed , a o Broods Park., d A 1 X /,;/_�� 1.4-') `;.......;""L"-',?
y f
.� ' : .LMf'W9SYr.VT!•.•��� ..kj .-7 y-,I.
r i /�P4777/r,oiax+�vrlur�rztc >, -
Lewis R card:Center.The city provided tax .� ••••---.0%.--1 i. I �f-
• incentives to the I-•X Center and created ant-i 1 i •`' 1� �'.�_� 't . ".
-1� -_ , i f y,-,
Aerospace Technology Office Park catering to - (-----j -`�1 "' %�r;� I i i,r ; •
NASA contractors.It also started planning for /, 3 it 4........- i/ i� �9 i I ' J
Aaospa=Parkway,which would provide a di- �,.. I ff i , ', /,�T' �_ : �� I 1.7 7.4., ,- i•
rest highway link between the area's koy eco- i •� - s .
comic assets--NASA.Aerospace Technology ' i 1 •T., -.
A
Park,the I-X Center,and the rt---and the ;: t • T »,.
mal highway system. e•.ti r'.�'-•.- ; •,
111. , t. i 7
:veland's early airport expansion pro- �'..;•-..' �.,� F f`-h'f"i ..., ,'�
posals would ha*extended airport runways 5 • �\ j- ` , ' ,/. -
into Brook Park.The plan not only would have
produced serious noise and safety problems With the goal of preventing Cleveland's ex- cause such ordinances were?rcemprf-i ay fri-
for Brook Park residents but also would have pansion plans,Brook Park passed zoning or- eral.:aw.The federal court upheld thy orci-
required the condemnation of the I-X Center, dinances that precluded use of the affected nand,determining that Cleveland rows:ab
eliminated majc r portions of NASA and Aero- property for airport purposes.Cleveland chal- byaG applicable Brook Park ordirtanc c.
spat Technology Park.and scuttled prospects lenged those ordinances in federal court,ar- Faced with the implications of rhar court
for Aerospace Parkway. guing that it was exempt from local zoning be- decision.in 1995 Cleveland and Broo.c Pa;;;
CLE INTERNATIONAL • PAGE 1-13 ■ LANE) USE LAW
Airports Sarah M. Rockwell, Esq. & John E Putnam, Esq
began an eztaided seri=of negotiations to re- more than enough runway length for inter- their munia.n-al bourtda:v so u;?t
solve their dispute.After almost two ya.rs of nations,fi nts. +ron"ai port e:tvelope” th-
intense negotiations,the dories agreed on a set- Before the serdernent agreement was fi- it Cleveland;in e zh rize„Clc'e±A'�
dcnent t rs,:wa;formally approved lax spring. nali.zed, the cities'municipal boundary ran :: Brook Park pp.:::.ini to y g:i,. =`47Cs-
Brook Park and Cleveland recent*wrapped down the middle of a two-mile brsinms cor- -mot •77:J:7;7,5=7.7
up the corapler details required to complete ridoro%! !Brookpark Road,which is home load available for coirsenercall,
the serrirsr eit sal,including ob tcing pre- to a conrentxation of adult-oriented busi- R&D uses and expediting con. 1,:ri,:u of
lirrinaryenvirommenr.1 zizr atsPcsaents,sur- nessc and lc:�-end indusa-a1 and comer- Aerospace Paa'Fvhay.
,,1:73 and riui.and fedcrz!and stet:approv-als_ ciai use:. 'rcok Park's long-term economic Brook Park r idenrs were -anr::.,ed
The sea em.ent agreement is extraordi- development objective has been :o redevel- about various re4edir -oI-life
nary both in its cornp!e dty and in its tip- op the corridor to take advantage of its lo- t Lose related to airport r,oice.Under the
proach to eccncmic development problems.. cation the airport Under the deal. Cleveland will:eek federal furyis
Among the highlights: Brook Perk obtained jurisdiction of both probe appr imerdy2250hornes in Brook
One of Cleveland's objectives was to in- sides of ar_okpark Road, facilitating the within a Eve-y r period.
crease eapzciry and accoanmodare non.-top area's co-^.F:..hensive redevelopment- In anticim..:inn of the.ertler.;se-'t
Bias`its to Europe_Under the deal,Cleveland FuU r Ong its loss in federal court.Cleve- Brook Park ha;been pr parin3 cctn,can expand the airport' y emending land was concerned that its airport planning sire redeveicEment Fizz,the cirr re
isring runway to 12,000 feet and cons-s.:ct- could be iryTM;ed forever by Brook Park's or- ;catty approved a new zoning dti r!mct 5,7-s-
ing a paraLLai.10,000-foot runway,providing d.inanc•....Undoes the deal,the cities changed a- redevelopment on both siti• a o Lise
•
•
•
LAND USE LAW
CLE INTERNATIONAL * PAGE 1-14 ■
Airports Sarah M. Rockwell. Esq. & John E Putnam. Esg Brooicaark Road corridor.The new zoning is
the ti1,step in implemc ±g a r_de-rdopn-,ent
strategy for the corridor that was presented to
the art council in 1996.
Second,because the .municipal boundary
change will bring I2 new adult-oriented busi-
nesses into Brook Park, the city council kxs
adopted comprehensive mew regulations tor
their control The regulations were carefully
crafted to meet First Amendment standards
while reducing the well-documented negative
effects of adult-oriented businesses.
Third,the thy is beginning design and e:-
vironmental work for Aerospace Parkway n
coordination with planning for development
of the newly acquired industrial property ac-
jacenr to the airport and the center.Before the
hostiiiry over airport expansion broke au:,
Brook Park already had obtained 514 Brillion
in federal ISTz-A funds for tnne project
Finally,the city is working with the I-1C.
ante:owner on options for the enhancement
of activities near the center. One of Brook
Park's first priorities is to promote develop•
meat of a first-class, hotel, an amenity tha:
would increase the at activeness of I-X for
large expositions and conventions. •
The Brook Park/Oeveland deal was puss.
ble because both cites put aside their long-
standing differences to find a structure for
community enhancement and economic de-
velopment that worked for both of them.
Through aeatrve lawyering and planning--
and patient negotiating-.-the cities were able
to look beyond traditional mitigation and m-
ogmze that economic development oppor:u-
nities could partially compensate for negative
airport-related effeem They recognized that
both caber—and the region---would benefit
from prescrring andbuilding upon their re-
spective economic assets,rather than fighting
each other's economic progress.---Sarah M.
Rockwell and Peter I.Kai is i
Sarah M.Rockwelland Peter I.Kirsch,bath
partners in cite law firm of Curler -Stanfield
LLP.,negoriated the s. ienr agreement are
behalf of rite thy of Brook They were asslsa
in this effort by the land use planning fern,of.I.DR
lnteriwnonaL
CLE INTERNATIONAL • PAGE I-15 s LAND USE LAW
Airports Saran M. Rockwell, Esq. & John E Putnam, Esi
Appendix B
Part 150 Noise Guidel.nes
Federal Aviation Adn;nistra ion, DOT Pt. 150,App.A
TABLE 1---LAND USE COMPATIBILITY*WITH YEARLY DAY-N%GHT AVERAGE SOUND LEVELS
Yearly day tight ave ags could lard(6.)in A...1.-....i
Lend t:ER
52)7n 65 65-70 70-75 75.50 60-35 I Over 05
RE$WSNTIAL
Residents!, other deer mob:; horsed ancl Y N(1) N(1) N N N
tanetar4 lodgings
Mobile fame soda___... .._....._..._.__.... Y N N N N N
N(1) N(1) N(1) N N
PUBLIC USE
Schools....».—.—....._._.»_._._--.,.. Y N(1) N(1) N N N
Hospitals Ted nursing horrors_...__....-._»..... Y 25 30 N N N
Churches,stditoriums,and Caner'te6Z_-_. Y 25 30 N N N
Govenvrlerua!eae'vnpee_-_.__._..-...- Y Y 25 30 ti N
Y 7(2) Y(3) "(4) Y(4)
Parking_._. Y Y Y(2) Y(3) "(4) N
COeeERCNL USE
Offoad buems=and yrotencicnl._..__._.._. Y Y 25 30 N N
Whdossie and b -sulWasz rnslooste Y V 7(2) Y(3) ':"(4) N
hardware end farm equipment
Y 25 30 N N
UUAtles.._.,.........._»..__...........,._._............. Y Y Y(2) Y(3) 14) N
Conr.Mmkeban._.Y..._. Y Y 25 30 rt N
MANUrACTURe$G AMU PROOUCTIOM
PAertltfaetwtng ge'e:+s-._..- Y Y Y(2) Y(3) I'(4) •N
Y 25 30 :. i N
.. Agnculb to(osOspt livestock)and forestry Y Y(6) Y(7) 7(6) '(5) !Y(3)
LiVO3adt taming and braedi ng.._...—..._._.. Y Y(6) Y(7.' N v 'N
Mining end aching,resource production Y Y )Y y j r Y
extractor.
RECREATIONAL
Outdoor sp0rto anemic one sooetedr sports.. Y Y(5) 115) N v N
Outdoor rnuc'r_shahs,sr.C',thROM.fa-- Y N N N J N
Platom exteb4s and docks- .. Y Y N N '4 I N
Artwssmen�,axle,:motor end camas..`.. Y Y Y N N N
Golf mumnn.riding Ceaf:lcn end water, ,Y Y 25 30 NI N
anon
Numbers to petenthesss rafts to rnsse,
'The designators;oonooloe in this Lotto do not cant(]P3 a Federal dor_rn!oabc n that any ttse of lend covered by the pro-
gram is adaptable or uneampta;lo under FodereL Stab,or local few.The responsibility for deterroosng the acbeala51e Ind die,
rnleebte!a^d usss end 7h revs..,-.e+y bsrwas n meek er and epoulin name artour5 sss'.with dm loco!ar:Bnwt5�.
FM detemunabons under pan 150 are not i ondet to ci•�federally dell.4ntrned!end mos:tr.'hose detaRNnod to be ap-
propriate by tots'authorities In.mcde..ae 10 locally do:ri m ed needs and vaene to achieving melee:arm dedlle land.two.
KEY To T.+sti 1
SLUCM•Standetd Land Uss Coding Mernie.
Y(Yes)=Land Use end raletoO sae'Cturae es eerie wioaut restrobo s.
N(No)=t.and Use and tatSbtd+xuWrres s'o not aflhpas de and should be F:vhlbitsd.
NLR■Nmee Level P.edu1 of)ouoaor to b'.u)to be tbowaOd through■=sporaehn of noise s+s^oet cn into the design and
con$wdAan of Via abLICluTs.
25.30.or 35•Land MO end misted ate:t:ras gsmally mmps9_le:massviss to sOeeve NLR of 75.30.of 35 dB nsa 9a Era
caporated Into design and conscucan of txuZt e.
Moots MR TABLE 1
(1)Whore the t xxnxmity detatmiroc dist residxiDal or school uses mum be allowed,:snores to anniove obt oor to indoor
Noise Leval ReduC,lan(NLR)of at!east 25.;tc and 30 d8 should be Incorporated Into budding r oaea end be cons:domd M indi-
vidual appOvals.tonal ruxdenSd!rarest a O✓xn stn be especial to mode a NLR of 20 45.Cost Ise rsdumcr rar t:(otnanr
are often af2teed as 5,10 or 15 d5 over�2.*.Crud usneouction and normally assume moo conical xr.±Aaon and&rood watches:
year round.However,Sec oce oe NLR alb to•sill not sitrrorete outdoor noise problems.
(2)Mumuret 10 a=neve NLR 25 d8 tend 7s Lxorpc►ated Into Ohs design and construction of'weans of theme bxild)W s
where the public is received. ewae t:oac so NINOO=SS or wham the normal mien tivt is to,.
(3)M»suns to athlete NLR of 30 05 n r be incorporated into the desgn and OOt'.eduubon of radians of thew buildings
when the public is remised.oRao emu,noise strsidve or or where the rennet n3i44 Wind is Rrc.
NI)Me9rras to au stem NUR 35 dB tints t,incotp :r.s is daxgre end;ItrWWoOOa of pardons of two bulktr..
where the pubic is received,efioa mass,roes sombre ire Woos or where tha marlin level is kw.
(51 Lano use complete,provided gordd sound mhtlarasmertl systems am trvttIbd.
(61 Resioenesl builds nga romoss on NLR of 25.
(7)Reecentlal buddinge molder an NLR of 30.
(a)Roeloorraat budtdloga not pxmited.
87
CLE INTERNATIONAL ■ PAGE 1-16 • LAND USE LAW
Airports Sarah M. Rockwell, Esq. & John E Putnam. Esq.
Appendix C
Aurora Disclosure Requirement
Sec. 146-1587. Airport influence district.
(a) The airport influence district is composed of that area designated by section 146-1580 of this wtic le.
Development in the airport influence district shall comply with height restrictions in the underlying Y one
district which do not intrude into FAR part 77 surfaces for military airports.
(b) An avigation easement with the city as sole grantee shall be conveyed to the city by any perso;
subdividing lands or initiating construction of any structure on already subdivided lands anthill the airport
influence area.
(c) Vendors of real property located within the airport influence area snail provide the following notice to
prospective purchasers and cause such notice to be recorded with the cierk and recorder of the approp--iatc
county:
NOTICE
The property known as(legal description and address)is located within an area which has
been officially designated as an airport influence district by the City of Aurora. As a
result of this designation the property is subject to one or more of the following:
(1) An avigation easement granted to the City of Aurora recorded in book , at
page , County,Colorado, which allows for the unobstructed inassage
of aircraft above the property, and provides for the waiver of any right or cause of action
against the City of Aurora due to noise, vibrations, fumes, dust, fuel particulates {caused
by aircraft or airport operations.
(2) The use and enjoyment of the property may be affected by aircraft noise, vibrations,
fumes, smoke, dust or fuel particulates from aircraft operation.
(3)The noise to which the property may be subject from aircraft operation may exceed
65 LDN, the maximum acceptable level set by the Federal Dep.artment of Housing and
Urban Development for residential land use (only if located within the LDN 65 contour).
(4)The involved property is located within an area which has been designated as an
accident potential zone II. Such property may be characterized by high noise levels and
accident potential resulting from aircraft operations(only if located within APZ ID:).
(5)The involved property is located within an area which has been designated as an
accident potential zone I. Such property may be characterized by high noise levels and
significant accident potential resulting from aircraft operations (only if located within
APZ I).
(Code 1979, §41-833)
CLE INTERNATIONAL • PAGE 1-17 • LAND USE LAW
Airports Sarah M. Rockwell, Esq. & John E Putnam Est.
Appendix D
Avigation Easement Example
caw'. CF _ASE:CST
CCM ALL ?'2E',1 3Y THESE 2A:'SECTS, that , GRANTOR
for good and valuable consideration; the receipt of whlth is hart). acknowledged,
desires to grant and convey unto COUNTY OF CLARK, a perpetual •vlgation easement
aver the said land hereinafter described in Clark County, State of Nevada; said
Land Li described as follows, to wit:
It is understood and agreed' that the COUNTY OF CLAIM, State of Nevada, is to
have a parpetsai right of flight, for the passage of, alrtraft in the sir apace
above rho surface of said pr-rises, together with the right to cause in said
air space such noise as may be inherent in the operation of aircraft, now known
or hereafter used for navy tion of or flight in the air, using said air space
or landing et, or taking-aff. fro or operating at, or en the premises known as
McCarron International Air^sor'_, Nel'_i+ Air Force lase and North Loa Vegas Ai_ycr
It :s further understood the GRA.NI0R does hereby egret for himself is release
Clark County, Nevada, from any claire whatsoever for losses hereafter caused
by noise or the psychological effects of aircraft wise resulting ern the
overflight of aircraft.
Property Owner's Ssb^tatun
STATE OF NEVADA )
es.
COUNTY OF CLAIM ). •
On this day of 13---. F"s..LNI OWNER'S NAME(S)
Personally appeared before aa, a Notary Public in end far the said County and
State, !Town to en to be the perscr.(s) describeed in and '.hc na : the
he sffore
e
going instrument. whn acknowledge to n that (he.shs,t ey) executed
freely and voluntarily and for the urea and pkwpooes therein eenticrrd.
E1 WITNESS WHEREOF. I have hereunto set my hand and affixed ay official seal
at my office in the County, the day and yt.r. in mis certificate first above
written.
acedreer's Ot:xea Onir- . ,votary ?iodic io and for
County and State
a_r;;idN 73 EOI;N.C atwstdt
CLE INTERNATIONAL • PAGE I-18 ■ lAND USE LAW
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