HomeMy WebLinkAbout1980-05-30 - City Commission Special Meeting Minutes5811 NORTHWEST BATH AVENUE 0 TAMARAC, FLORIDA 33321
TELEPHONE (305) 722-5900
May 29, 1980
NOTICE OF SPECIAL MEETING
CITY COUNCIL
Please be advised that the City Council will hold
a Special Meeting on Friday, May 30, 1980 at 2:00 P.M.
in Council Chambers of City Hall.
The Matter to be discussed is the Executive Air -
I port.
The public is invited to attend. .;.The City Council
may discuss such other business as may come before it.
OVA NZ, - W-' L,
CITY OF TAMARAC, FLORIDA
SPECIAL CITY COUNCIL MEETING
RE: EXECUTIVE AIRPORT
MAY 30, 1980
CALL TO ORDER: Mayor Falck called the Special Meeting to order on
Friday May 30, 1980 at 2:00 P.M. in Council Chambers.
ROLL CALL:
PRESENT: Mayor Walter W. Falck
Vice -Mayor Helen Massaro
Councilman Irving M. Disraelly
Councilman Irving Zemel
Councilwoman Marjorie Kelch
ALSO PRESENT: City Attorney, Arthur M. Birken
City Clerk, Marilyn Bertholf
Mayor Falck opened the meeting with remarks of welcome to the
audience and read the notice of special meeting.
Mayor Falck stated that the City has retained the firm of
Milledge & Hermelee to review the activities of the Executive
Airport because of the constant encroachment of this airport with
its various installations, additional hangars, repair facilities
closing off 21st Avenue which has deprived the people east of 441
of access way into their homes. The Mayor also mentioned the
extension of the east -west runway by approximately 1000 feet. At
the present time they are also planning the installation of a new
night lighting system, which if approved means more planes at
night. He mentioned the noise that exists not only east of 441 in
relationship to the airport, but the landing pattern is affecting
all the residents. The impact study is either under way or about to
get under way and all of this adds up to more noise and more concern
on the part of the citizens who live in the city. The Mayor stated
that there would be some input from the people in the audience
who desire to speak on the matter, and then Council will have additional
discussion and perhaps possible action.
Mayor Falck first opened discussion to members of the Council.
V/M Massaro indicated she would be very interested in comments
from the law firm of Milledge & Hermelee as to what the next steps are
that the City might take.
C/W Kelch indicated that she would like the law firm to comment
on the proposed Resolution they have submitted, recommendations on
the sound level study and the environmental assessment. She would
like to know what the firm proposes would cost the'City.
C/M Disraelly and C/M Zemel both indicated they would like to
hear the presentations from the law firm.
Mr. Milledge presented a background of his firm that they
specialize in the different arrangements for the use of land and
airports and their uses and their impacts on other people in the
community. They also specialize in Federal Litigation which is tied
to this field- because often these types of matters do end up in
court and almost always they tend to be in the Federal courts. This
type of litigation which is tactical litigation, getting organized for
it and then not having to go through with it is also a part of their
specialty. Mr. Milledge introduced Attorney Earl Gallop, who has
had extensive experience in the field of land use and planning at
State level and has published a number of articles in this general
field. Their non -lawyer specialist is Mr. Norman Arnold, who has more
precise experience in the field of airport operations and more
particularly the environmental assessments that go with them. He is
one of the few in the country with this level of experience and was
until recently the head of the environmental section for FAA in
Washington and is extremely familiar with all the detail
rules and regulations, procedures etc.
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Mr. Milledge stated that the airport is in an expansion
phase and it has to have approval by the FAA to engage in its
expansion. It's current expansion activity is roughly $3 million
dollars of which the major expense is the runway extension. This
in a larger term is viewed as potentially an airport expansion that
may not have a large impact on the community and because of that the
type of activity that the airport is engaged in, to justify this,
is called an environmental assessment, and that environmental
assessment if nothing more happens, will simply be passed on and
perhaps be approved -by the focal Level of FAA. If, on the other hand,
it is determined that this is a major runway extension, then all of
this proposed activity must be reviewed at the Washington level of
FAA,at the Dept. of the Interior and the Environmental Protection
Agency as well. Mr. Milledge said he believes that when all the
facts are in�it will be cledr that the runway extension will result
in heavier and noisier aircraft and almost certainly the reason that
they are doing it is because of increased activity at the airport site.
They have declined to advise affirmatively or negatively that they
have in mind some type of Purolator or Federal Express type service,
which involves jet aircraft. They have declined to say who are the
two new major tenants they are negotiating with, but that is a
possibility for substantially more use of this airfield. The bad
effect from noise is principally associated with jet aircraft and
in figuring the impact that noise has on population at large. It
is night flights that are the most serious imposition on any
neighborhood, and when the Federal government makes determinations
about noise impact, night flights that are objectionable are rated
roughly ten times as great as equivalent noise levels in the day
time. The Federal study is going on, it will be completed and the
recommendations will come out. They have a public hearing that
could come up at any time from 30 to 60 days and then the recommenda-
tions will be made and the local FAA will be prepared to pass on it
if nothing further is done.
Mr. Milledge said their first and primary recommendation is
that the City provide the funds to get the facts together - facts
in terms of appropriate demonstrations so they can make sure that
the matter is reviewed by the various Washington agencies. There are
two different aspects to this, if it is determined to be a major
runway extension. One -it has to be reviewed in Washington, but
then the standards for review are different. They can't engage
in this runway extension if there is any feasible or prudent
alternative and they can't do it unless they demonstrated that they
have taken every possible mitigated measure to mitigate the impact,
the noise impact or other impact on the community. Those are very
hard standards to meet. At that point they really have to deal
with this community. If heavier or noisier aircraft 'that couldn't
use the 6,000 ft. runway - now can use the 7,000 ft. runway,
then at that level of activity it is a major
runway expansion. The experts that are working for the airport
are going to say that this additional 1000 foot runway
doesn't really change this airport at all. Mr. Milledge believes
that his firm could demonstrate that it changes it in a significant
way using different standards, significantly enough to have the
decision made in Washington rather than locally. Mr. Milledge said
the costs by the experts to establish that a heavier, noisier class
of aircraft can use this airport and including the expert time
such as Mr. Arnold (excluding lawyers) and the outside cost of doing
the various studies to establish that this will be a major runway
extension over the next three month period roughly would he about
$12,500.
Mr. Milledge said it's very important that Council pass a
resolution strorral.y in opposition to the airport itself and citing
the noise, etc. and that's something that the City Attorney, Mr.
Birken can do in large measure, but definitely should have their
assistance. It needs to be the kind of resolution that would
produce or help produce the desired result- with the people in
Washington who will ultimately review this. He described the type of
results that occurred in other areas of the country such as a night
curfew, an earth berm erected to deflect noise, etc. There is another
area that should be prepared and followed, and that is this runway
extension is a development of regional impact, under the State
system, and again that should be processed by the City Attorney.
Mr. Milledge cautioned Council that this is an important avenue
to pursue because when the studies are done by Fort Lauderdale, they
are going to show that the airport isn't going to be any noisier.
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In the long run, it's important to attempt to work this all out
with the City of Ft. Lauderdale since this is an airport, it is
an agency, it is a facility of Interstate Commerce and sometimes
airport operators use that to say"well nobody can touch me - I
am above all other coroerrs." But an airport operator may enact
regulations which close the airport at night and/or restrict
the airport from noisy operations or restrict the airport from
certain levels of noisy flights at night or various other things.
Mr. Milledge said it would not be constitutional for Tamarac to
enact an ordinance that attempted to prohibit flights passing over
the City at night at low altitudes on approach, but that same type
of regulation can be enacted by the airport proprietor or its
proprietary municipality. Mr. Milledge suggested that the Tamarac
Officials and Ft. Lauderdale Officials discuss regulating the
airport operations. Perhaps the statement of the airport Manager
in a December letter to the Mayor that the airport will be open
24 hours a day, is not the final word. Even he has people to
answer to, namely the Ft. Lauderdale City Commission.
Mr. Milledge indicated that his law firm would need to follow
the environmental assessment action for the next 2 to 3 months. In
order for his firm to accomplish that as well as gather all the
necessary data, etc. a total budget,of $30,000 should be appropriated.
The basic priority, in terms of expenditure of money, is in
gathering basic data because that is the talking point, and the
point which will get you into a different situation. It has to be
established that this is a major runway extension. Then the burden
is on them to establish to the satisfaction of three departments
in Washington that there is no feasible and prudent alternative to
this expansion and that they have engaged in every reasonable
mitigative measure.
Mr. Arnold commented,that he assumed the City's concern ig about
the whole instrument landing system which includes the landing
system approach lights and a bright electronic light path. Certainly
it makes the airport more usable at night and in particular if the
weather is good, it can be seen for a landing. But what the instrument
landing system in total will do is to provide them with the
capability for appropriately equipped aircraft to come in when the
visibility is lower and the ceilings are lower, because it brings
them right in to the end of the runway. The question of how much
additional traffic this will generate is tied in to the effect
of the runway extension and what that means in terms of possibilities.
It's also tied in with how much time the airport is effectively
not usable because it currently does not have an instrument landing
system. He assumed that the instrument landing system is being
evaluated by the FAA and their evaluation will provide some of
this data. If they don't, then it is legitimate to ask for it,
because that's what they are supposed to do, consider what the impacts
are.
C/W Kelch asked if her interpretation of a portion of the report
was correct in that this matter would come before the South
Florida Regional Planning Council and they could deny the application,
that Milledge and Hermelee could prepare the presentation
nor the City to submit to the Planning Council which could be the
basis for the denial.
Mr. Milldege concurred that the City has a good chance before the
Regional Planning Council.Since his firm represents the Planning
Council Mr. Birken would have to make the presentation, but Mr.
Arnold would be available for technical assistance.
C/W Kelch asked if her second interpretation was correct in
that the City of Ft. Lauderdale must consider the report and re-
commendation of the South Florida Regional Planning Council to which
Mr. Milledge responded in the affirmative. He added that if they
don't follow it, they have to give their reasons.
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V/M Massaro stated that from what she has seen and heard so
far it's unlikely that there is anything we can do about
eliminating this airport.
Mr. Milledge concurred with V/M Massaro's comment that there
is nothing that can be done to eliminate the airport. The
preliminary review did not find that this airport is in violation
of any state or federal laws or regulations. The reason at this
point that we have some leverage yrith them is they want to expand.
V/M Massaro stated the City can't stop their expansion based
on anything they should have done in the past and didn't do, such
as Public Hearings.
Mr. Milledge stated there was no basis for that. The airport
master plan was adopted some time aq.o and there isn't any reason
to believe that it wasn't adopted correctly at that time.
V/M Massaro asked Mr. Milledge if the City had any hope of
accomplishing anything more than stopping night flights.
Mr. Milledge thought perhaps some restriction on noisy aircraft
might be imposed, there is hope for some definition of maximum levels.
Another requirement might be high earth berms.
In answer to C/W Kelch's question, that in the same way that
they must respond to the comments from the South Florida Regional
Planning Council they also, the. City and the FAA,must respond
adequately to any comments that the City of Tamarac makes to the
environmental assessment. The City's comments and responses must
be forwarded to the FAA and the FAA must consider both the comments
and the response, so that any reaction that the City of Tamarac has
to the environmental assessment goes on the record, along with the
responses made by Ft. Lauderdale.
The more factually oriented such comments are, the less easy it is
to dismiss.
Tape
Side C/M Zemel stated that he would be interested in hearing comments
#2 from the people who are most interested and affected.
Mayor Falck asked if there were any members of the audience
interested in making observations.
Carl Broker stated that he felt the airport be stopped improving
on the type of airplanes handled. He expressed concern over the
possibility of airplanes crashing and killing people.
Bill Rothwell stated that the plans for the extension of the
runway have been in progress for a long time. He has seen the
plans for the airport expansion and knows from experience that they
don't lengthen a runway without putting heavier aircraft into flight.
Lucille Doyle stated that the point the City and its residents
are trying to get across is that the people are tired of being
awakened in the middle of the night and having to put up with the
pollution from the planes and the noise.
William Murphy of Tamarac Lakes North, expressed the feeling
that the Ft. Lauderdale News was in favor of the airport expansion.
He questioned where do the Broward Legislators stand on the issue?
He expressed the feeling that Lauderdale by the Sea, Sea Ranch Lakes
and other cities should be involved in this matter also because they
too are in the flight pattern.
Hugh McLennon, Boulevards Section, expressed the feeling that
the City should go after the airport with every legal means possible.
Evelyn Lang(�,,.of the Boulevards Section, agreed with the previous
speakers by saying that Tamarac should fight this expansion.
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V/M Massaro said that there will be Public Hearings on this
matter soon and that is when the people should speak up.
C/M Uisraelly asked Mr. Milledge on a matter of night flights,
it is his understanding that the airport theoretically is closed
at night. The tower is closed.
Mr. Milledge stated that while the tower is closed, the airfield
lightsare on. There are no air traffic controllers in the tower,
but as long as the lights are on the planes can land. The night
flights are supposed to be logged in and out by the police, but it
could be easy for.the police officer to miss planes landing and
taking off.
Mr. Milledge statedth4t if money is appropriated, one of the
first tYings his firm will do is have noise analysis taken.
C/M vistaelly stated that what particularly bothers him is the
fact that they can land at night,with no regard to logging
requirements, arrangements to be made for someone not to be present
at that particular moment, and what comes in and what. goes out is
virtually unkown.
Mr. Milledge stated that this is a serious defect.
V/M Massaro asked what responsibliti.es are placed on the airport
to maintain its certification levels. If they are exceeding these
levels what can the City do about it, if anything?
Mr. Arnold stated that the limit to the actions that can be
taken if the airport is determined to be unsafe is to close it down.
In response to a question by V/M Massaro concerning air rights,
Mr. Arnold stated that there are such things as air rights. Air
rights can be purchased or when land is acquired and resold,
,the air rights are reserved.
Mr. Gallop directed attention to flights that are overweight and
unsafe. When the FAA is m anningthe tower, the flights are supposed
to be supervised. There are two ways of getting the flights
supervised. One is to expand the hours the tower is open; or close
the airport after hours, except for emergency flights, which is not
something that we want, or it's to close the airport after hours and
no flights can take off and come back except emergency flights.
There are air rights and there are rights to peaceful enjoyment
that break down :into three types of legal actions. One type of
"legal action is inverse condemnation and that refers to a taking of
a person's air space directly over their property and that requires
proof that the noise that is created by the airport operation or in
this case airport expansion, is sufficiently disturbing so that it
destroys one's right to ."his , peaceful enjoyment of the land.
V/M Massaro asked what kind of air rights does the City have?
Mr. Gallop continued by saying that the City does have air rights.
It has be proven that under existing conditions or under immediately
foreseeable conditions, . the airport operations are very
inconsistent with the right to the enjoyment of peace and quiet.
There are two other types of rights which relate to nuisance, public
nuisance and private nuisance. These relate to rights to
peaceful enjoyment which are more expanded in the geographical scope
in relation to airport noise than under the taking of inverse
condemnation. Under inverse condemnation you have to be right under
the flight path. For those people who live laterally to -the airport,
if the noise causes damage to their rights, then there is a basis
for suing for a nuisance. A private nuisance suit. though has a
limit. It is difficult in that the homeowners -';have to show that they
are affected differently than anybody else in the community, and there
may be a small number of citizens that can do that. A public
nuisance suit,though�is a nuisance that is -vested more in the public
domain. That is it is a nuisance to the community at large and it
is the place of perhaps the City, or the place of the citizens suing
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in the name of the State or perhaps a place in the State Attorney
General to bring a public nuisance suit. The public nuisance suit
is available even if the airport is complying with existing
regulations regarding operations and noise and so on, because
even in complying with these existing regulations, there may
still be a conflict which doesn't let you use your property in
a way that is enjoyable and peaceable to you. But that involves
a balancing test, and the balancing test is made by the court. It
is the balance of the public need for the airport versus the degree
of damages to the community. The courts will take into consideration
what they can do to harmonize those interests - which involes
litigation. The city can initiate this suit.
10
Mr. Gallop wasn't sure whether the City sues in its own right
or the City sues inthe name of the State, but it will probably be
prudent to join some citizens with the City to get the basis in
two different ways. The independent noise sound study involves
setting up measuring instruments and taking noise readings. The
greatest benefit of that is directed towards a public nuisance
type suit.
C/W Kelch stated that the recommendations section of the report
recommended that the City suggest to the City of Ft. Lauderdale
that they pass a curfew ordinance. If they did not pass this
ordinance, then Tamarac could then bring suit as a public nuisance
suit.:. She felt this is the kind of positive action members of the
audience were talking about, and in spite of the litigation, she
would be in favor of it.
Mr. Gallop suggested that the best possible position for the City
to be in to get a solution of the kind the City wants is to
participate in three arenas. 1. The administrative arena - that was
focused on mainly today; 2. Preparation for legal suits; 3. Partic-
ipating in the political arena, which is harmonized in its politics
between the cities involving representatives, involving the
administrative agencies. The litigation is beneficial because it
puts us on the offensive and yet we take the tack, we generate the
information, we state what we want, but it's also the most intensely
conflict -oriented type of resolution. He thought that you need to work
up to it for a couple of reasons. One is the costs involved in
litigation; that's where you need the independent sound study. You
are putting the decision to the judge and you are going outside
yourself for decision. Therefore, their recommendation is that first
they get certain information so that they can personally get
information, but along with that publicly state our position, to
state in.a way that speaks to the FAA, to Ft. Lauderdale and to
state processes and especially to the city. Secondly, present them
with noise control, which announces to them that if they don't
seriously consider the City's position, we are going after them and
that we do it in the administrative, which leads up to the legal realm.
C/W Kelch spoke in favor of the City accepting the recommendations
presented and take action to initiate them.
V/M Massaro MOVED that council instruct the City Attorney to
prepare the resolution which was suggested by Mr. Milledge with
the assistance of the firm of Milledge & Hermelee. Second, to
instruct the City Attorney to give Council the recommendation on,how they
should go about starting the dialogue which Mr. Milledge spoke of.
And the balancetake under advisement and decide how to
proceed with anything further. With a fee of $1,500 for preparation
of the resolution. C/W Kelch SECONDED the motion.
In response to a question of V/M Massaro, Mr. Milledge stated
that his firm will continue to attend meetings concerning this
matter.
C/M Zemel asked Mr. Arnold if he had ever known where ILS
runways tsave been restricted by either ordinance or regulation or
agreement to blind or emergency landings only?
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Mr. Arnold answered in the affirmative with an explanation.
The existence of an instrument landing system does not mean that
it has to be in operation 24 hours a day for all purposes. There
have been cases where restrictions have been placed
by the proprietor and with the agreement of-. the FAA and operations.
Operations at night sometimes are more general
on operations of aircraft above a certain noise level, with.
exceptions for emergency. He used
a situation in Kalamazoo, Michigan where the city adopted a
curfew on the noisy aircraft after a certain hour ..at night and
not before a certain hour in the morning. It had an exception for
emergencies, medical emergency or an aircraft in trouble but in
general it is a city ordinance in Kalamazoo which prohibits use of
the airport if you exceed a certain noise level either when you
land there after 11 at night or take off before 7 in the morning.
C/M Zemel concluded that there can be a limitation of decibel
level, there can be a limitation of blind flight from the ILS in
fog or heavy rain or other emergency where they can't see to land
and possibly for medical emergencies only.
In response to a question from C/M Zemel concerning night
operations, Mr. Arnold said there may be an agreement between the
FAA and the airport that, as a condition of some time in the past,
the FAA gave them money to put in the lights, then the airport is
supposed to keep the lights on.
C/M Zemel asked if ILS goes in without restrictions does that
mean that students and private planes will start using that for ILS
training in order to upgrade their licenses and could we possibly
have a Thurmond Munson case at this airport, to which Mr. Arnold
answered affirmatively. This situation could result in a great
many more training flights originating from this airport.
Mr. Milledge stated that it is premature to start drafing
the ordinance at this point. The ordinance will be based on what
the data shows, which isn't prepared yet. The dialogue ought to
start soon before many months go by. In a couple of months we ought
to be in to drafting the ordinance.
There probably is going to be
some argument about the technical side of the ordinance because
it is a tricky field of law in which Interstate Commerce doctrines
that are called pre -exemption etc., are all involved and there's
only a few successful examples around the country, so it's a
pretty close piece of legal work if it is going to be successful.
The main thrust of what of what has'been discussed centered
around the fact that what 'the city is going to .do should be completed
prior to the impact study that will be considered by the 5uuth
Florida Regional Planning Council in October.
Mr. Arnold said the other thrust is our data gathering, and how to
use it. The environmental assessment has to be completed and pre
sented at that public hearing, in the federal process. The federal
environmental assessment, being done for the airport under the federal
laws, could be discussed at the final hearing. They have to give 30
day's notice, which they will probably do in a month. Having only
2 months to gather the datajthey need authorization to begin work
on the data study, because the federal process is one of the strongest
pieces of leverage.
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C/W Kelch requested an amendment to the motion that
authorization be given for expenses not to exceed $12,500
for the assimilation of the proper data for the protest
against the major runway extension.
V/M Massaro accepted the amendment.
C/M Zemel asked Mr. ,Rothwell if it is true that the
people who go on I.L.S. Landings first use simulators and
trainers prior to practicing in the field. Therefore, the
practice on the strip is minimal and Mr. Rothwell concurred.
Mayor Falck stated that they have a motion that has
been amended. The amendment has been agreed to by the second,
and it is under discussion now. Being no further discussion
he called for the question.
VOTE: ALL VOTED AYE
Mayor Falck thanked the members of the firm of Milledge
& Hermelee in attending the meeting and the members of the
public for their support.
Meeting adjourned.
ATTEST:
ZR/"!"
MAYOR
APPROVE BY
CITY COUNCIL ON
This public document was promulgated at a cost of $0.for $ 3.7y
per copy to inform the general public and public officers and
employees about recent opinions and considerations by the
City Council of the City of Tamarac.
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