title
REVISIONS TO AIRPORT HAZARD ZONING REGULATIONS (B)
Ordinance No. 0-09-68
An ordinance of the City of Gainesville, Florida, relating to Airport Hazard Zoning Regulations; amending Appendix F of the Land Development Code of the City of Gainesville by stating a purpose and findings; by amending definitions; by amending and updating requirements for regulating the use of land within the Airport Noise Zone; by adopting a new Airport Noise Zone Map; by correcting references in the existing text and conforming the regulations with the state and federal law; providing directions to the codifier; providing a severability clause; providing an immediate effective date; and providing directions to the Clerk of the Commission.
recommendation
The City Commission adopt the proposed ordinance.
explanation
PLANNING AND DEVELOPMENT SERVICES DEPARTMENT STAFF REPORT
The purpose of this ordinance is to adopt a new Airport Noise Zone map and to update the Airport Hazard Zoning regulations. The intent of the proposed changes is to protect the safety and welfare of citizens through development regulations that recognize that certain uses are incompatible with airport operations and if allowed to develop, may negatively impact the normal lives and day-to-day activity of citizens who would reside, work or congregate therein and result in dissatisfaction and complaints. Conversely, it is also important that the regulations protect the airport from incompatible land uses that may hamper the current and future airport operations
By way of background, two events have led the City to consider a new Airport Noise Zone map and revised Airport Hazard Zoning regulations: the updating of the Airport Master Plan in June 2006 by the Gainesville-Alachua County Regional Airport Authority (GACRAA) and the processing of a land use change in the Airport Noise Zone in 2007 and 2008 by the City. During the course of the land use change hearings, the property owner asserted that the City's existing adopted Airport Noise Zone Map (dated 1999) was out-of-date and should be replaced by a more updated map, such as those in the Airport Master Plan. The City and GACRAA sought FAA guidance and financial assistance in this matter. As a result, GACRAA, through its engineering consultant funded by an FAA grant, prepared current and future official noise exposure maps through the process required by federal regulation in Appendix A of 14 C.F.R. Part 150. The maps entitled "Existing (2007) Noise Contour Map" and "Future (2012) Noise Contour Map" was reviewed by the FAA and, on April 20, 2009, the FAA issued a "Noise Exposure Maps Compliance Determination", finding that the maps were developed in compliance with the Part 150 requirements. Based on this determination, staff recommends that a new Airport Noise Zone Map, based on the "Future (2012) Noise Contour Map" be adopted into the City's Airport Hazard Zoning Regulations.
Simultaneous with GACRAA's preparation of the new official noise exposure maps, the City Commission was discussing and seeking input on airport noise regulations in general and the possibility of updating the current regulations at such time as the new maps were completed. At its meetings of October 16, 2008 and November 20, 2008, the City Commission heard presentations from City Staff, Ted Baldwin, an expert with over 30 years experience in aviation noise and land use compatibility retained by the City, and GACRAA's airport noise consultant, and regarding noise and land use compatibility and the schedule for bringing forward proposed revisions to the Airport Hazard Zoning Regulations. Mr. Baldwin further informed and advised the City at that it is timely, customary and appropriate to review the Airport Hazard Zoning Regulation contemporaneously with the adoption of the new official noise exposure maps. On June 18, 2009, after the maps were determined compliant by the FAA, the City Commission directed staff to process a petition to update the Airport Hazard Zoning Regulations.
In order to recommend the most appropriate revisions to the current regulations, City staff has consulted with Ted Baldwin, an expert with over 30 years experience in aviation noise and land use compatibility retained by the City; the Environmental Programs Staff of the Federal Aviation Administration (FAA); GACRAA; and has reviewed industry literature and reports prepared by the FAA, Transportation Research Board, Paul Schomer, Ph.D., P.E., and information provided by consultants for East Gainesville Development Corporation, the largest landowner in the Airport Noise Zone.
As a matter of general planning principles, it is widely recognized that certain uses, such as but not limited to residences, schools, hospitals, and nursing homes, are incompatible with airport operations. The more specific issue for each community to determine is at what noise level or proximity are such incompatible uses prohibited, restricted or allowed.
In particular, the City must examine the new Noise Zone Map and determine whether the current 65 decibel (dB) Day-Night Average Sound Level (abbreviated "DNL" and sometimes "Ldn") noise contour is the best standard to continue to use to ensure that incompatible uses are adequately separated from the Gainesville Regional Airport. It has been asserted that the 65 dB DNL noise contour is the appropriate standard because FAA guidelines, as set forth in Federal Aviation Regulation (FAR) Part 150 entitled "Airport Noise Compatibility Planning" (codified in Title 14 of the Code of Federal Regulations), identify this contour as the outer limit of the area in which land uses may potentially be incompatible. However, those same compatibility guidelines state that "[t]he designations contained in this table do not constitute a Federal determination that any use of land . . . is acceptable or unacceptable under Federal, State, or local law. The responsibility for determining the acceptable and permissible land uses and the relationship between specific properties and specific noise contours rests with the local authorities. FAA determinations under part 150 are not intended to substitute federally determined land uses for those determined to be appropriate by local authorities, in this case the City of Gainesville in response to locally determined needs and values in achieving noise compatible land uses." FAA clearly considers the establishment of compatible land use standards to be a matter for local determination.
By way of example, in 2002, the City of Naples, Florida, updated its Airport Overlay District Regulations to address incompatible uses within the 60 dB DNL contour. The Naples Airport Authority proceeded to also ban access of Stage 2 (older noisier) aircraft to the Airport based on the 60 dB DNL concerns. Two related lawsuits ensued. In 2001, the United Stated District Court for the Middle District of Florida found that local authorities can consider noise levels below 65 dB DNL in making decisions and in 2005, the United States Court of Appeals found that the evidence in the record before the City all supported the conclusion that the 60dB DNL level is considered a significant noise threshold in the City of Naples.
As discussed in more detail in Section 4.1 of a memorandum from Mr. Baldwin to the City dated April 6, 2009, in 1974, at the direction of Congress, the US Environmental Protection Agency published a report that identified the DNL as the appropriate metric to use in addressing land use compatibility, and identified 55 dB as the "level requisite to protect health and welfare with an adequate margin of safety". As discussed in Mr. Baldwin's memorandum, the FAA's 65 dB DNL guideline is less stringent for two primary reasons: (1) it does not include a five-decibel margin of safety, and (2) it is based on technological and economic feasibility conditions that existed in the late 1970s and early 1980s, when aircraft technology was far less advanced and airport noise contours covered far greater areas than today.
Although delineated by use of noise contours, the Airport Hazard Zoning Regulations are also intended to protect against the other negative effects that aircraft operations have on underlying property users, such as but not limited to, dust, debris, being startled at the low altitude or frequent presence of aircraft, vibration, fumes, and fuel particles. These effects can range from being merely annoying to being physiologically and psychologically damaging to citizens. In simplest terms, when aircraft were noisier they could be heard a greater distance from the center of the airport runways (hence the noise contours extended farther from the airport). Now, improved technology has resulted in quieter aircraft that are not heard until they are closer to the center of the runways (so noise contours are closer to the airport). However, this does not take into account that when aircraft are closer to the runways, they are flying at lower (ascending or descending) altitudes, thus likely increasing the other non-noise effects on underlying property.
There is a valid public purpose in maintaining physical separation between the airport and uses that may be negatively affected by airport operations. This is illustrated by past experience of the City. In 1983, the Gainesville Regional Airport extended one of its runways, placing residences in closer proximity to aircraft operations. The residents claimed their lives and property were disturbed and damaged by the frequency and proximity at which aircraft were flying over their property. The residents claimed that the noise, vibration, fumes and fear they experienced caused loss of sleep, frequent anxiety, stress, and physical damage to their property. The complaints culminated in a lawsuit filed by the residents in 1987 and ended in 1994 with the City paying out $926,295.21 in compensation and costs to the property owners due to the adverse effects of the airport operations. Fortunately for the City, a large majority of this expense was funded by the FAA and the State of Florida. This figure does not include the costs on the City's portion of this lengthy litigation.
Given the review of the reports, industry literature, information from GACRAA and other interested parties, and the City's experiences, staff supports Mr. Baldwin's recommendation that the City should make the following key revisions to the regulations:
1. Prohibit any new residential dwellings and other noise sensitive development within the 65 dB DNL and above contours.
2. Prohibit any new residential dwellings and other noise sensitive development within the 60 - 65 dB DNL contour, with the exception on a case-by-case basis for infill development and require a minimum of 25 dB exterior-to-interior noise level reduction and the property owner shall provide the City and the Gainesville Regional Airport with a permanent avigation easement. This avigation easement is a recorded document that runs with the land and is binding on all future owners of the property.
3. Require any new development within the 55-60 dB DNL contour to provide a minimum of 25 dB of exterior-to-interior noise level reduction.
The ordinance has incorporated these recommendations and the new Airport Noise Zone Map. These recommendations are discussed in more detail in Section 4.2 of Mr. Baldwin's memorandum. In addition, these recommendations, which were contained in the petition for this ordinance, have the support of GACRAA as evidenced by its Resolution No. 10-002, adopted October 29, 2009.
In response to concerns raised by the City Commission at the petition hearing on October 1, 2009, and the additional recommendations made by GACRAA in its Resolution No. 10-002, this ordinance includes a requirement for recorded avigation easements to be provided for development within all of the noise contours (the 65 dB DNL, the 60 dB DNL and the 55 dB DNL). It is the opinion of staff that this additional requirement is of minimal expense to property owners seeking to develop and is the only realistic way to provide notice to future landowners and some level of protection to the City and GACRAA against liability arising out of airport operations.
As discussed at the petition hearing before the City Commission on October 1, 2009, when considering revising or adopting new regulations, it is always important to consider the impact those changes will have on landowners within the affected area. This is especially true when, as here, there is one large landowner affected and several smaller landowners. Of particular concern, staff has considered and finds that the revised regulations leave many economically viable uses for the property within the Airport Noise Zone, including but not limited to industrial uses, commercial uses, conservation uses, storm water facilities, wetland mitigation areas and customary accessory uses to residential uses (which could include recreational facilities, green space and other common areas). In addition, staff has considered and found that although the revised regulations regulate within the 60 dB DNL contour, that area is significantly smaller geographically than the current 65 dB DNL and in fact is closer to the land area and configuration of the current 70 dB DNL. Therefore, especially as concerns the one large landowner significantly less of its land area is affected by these revised regulations, when compared to the existing regulations.
On August 27, 2009, the Plan Board heard the petition and by a vote of 6-1 recommended the City Commission approve the petition.
CITY ATTORNEY MEMORANDUM
On October 1, 2009, the City Commission approved the petition by a vote of 7-0. If approved on first reading, second and final reading will be held on Thursday, December 3, 2009.