Aurora may be boring a hole in the Griggs case
DIA did all the right things in establishing noise ordinances with communities
New Runways were identified and announced
City of Aurora revises noise ordinance to allow houses in line with new runway
A conflict between the Denver International Airport and the City of Aurora has been formalized in a lawsuit brought by DIA against the City. A new ordinance passed by the City Council would allow a developer to build residences in an area previously prohibited by the prior restriction. The odd facts of this case may puncture the rational of 38 year old decision finding airports liable for inverse condemnation.
Mr. Justice Douglas, for the Supreme Court majority, wrote the opinion in the seminal case of Griggs v. Allegheny County, 369 U.S. 84 (1962). The issue was what entity bears the liability for the noise damage incurred by the neighbors of Pittsburgh’s airport. The legal analysis sorted through the defendants that were possibly liable to the plaintiffs.
“We think, however, that respondent, which was the promoter, owner, and lessor [Footnote 2] of the airport, was, in these circumstances, the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the CAA, where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority which decides to build an airport vel non, and where it is to be located. We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built. Nor did the Congress, when it designed the legislation for a National Airport Plan.” [the full opinion]
The below story offers different facts:
- The airport, Denver International (DIA) announced in 1989 that an airport in Adams County and then again in 2012 stated its intention to build a new runway 28 R/ 8L.
- Before DIA was built. the City of Aurora adopted a Building and Zoning Code of Aurora policies regarding development in the vicinity of the airport are found in Code Sections 146-800 to 146-822, (Airport Districts zoning codes) Article XI, Aircraft Noise Reduction.
- ARTICLE XI. – AIRCRAFT NOISE REDUCTION
— (6) —
Cross reference— Aviation, ch. 18; airport influence district, § 146-1576 et seq.; general airport environs, § 146-1621 et seq.; noise, § 146-1961 et seq.; residential uses with commercial aircraft noise impacted, § 146-2036 et seq.
- 22-425. – Intent.
This article provides three methods for residential and commercial building design/construction to comply with the aircraft noise reduction criteria referenced in Chapter 146, Article 8, of this Code. The methods in this article are for new or remodeled structures that are within the Buckley AFB Noise Impact District (NID), Special Noise Impact District (SNID), Denver International Airport’s (DIA) Commercial Airport Noise Areas (CANA), and Noise Impact Boundary Areas (NIBA), residential and commercial areas with the LDN 65 and residential areas within the LDN 55 contours around Centennial Airport and Front Range Airport.
- As early as 2017, the High Point property was acquired with the intention to develop it for a non-conforming use
- On December 16, 2019 the City Council took the affirmative action to create homes in an area likely to be impacted by the already declared DIA runway
The Supreme Court’s logic in Griggs is inapposite to the instant facts. But for the legislative decision of the City Council, the High Point residents will be subjected to noise that they would not have heard but for the municipal ordinance permitting the conflicting use.
Under these circumstances, a court applying Griggs could find Aurora, not DIA, for millions of dollars of inverse condemnation.
AURORA | Denver International Airport on Friday filed a lawsuit in Adams County District Court alleging members of Aurora City Council abused their authority last month when they approved a zoning change that would permit the development of homes within half a mile of a forthcoming airport runway.
All 11 Aurora City Council members, as well as the head of the city’s planning department and real estate developer Westside Investment Partners, are listed as defendants in the suit.
At issue is an ordinance city council members tentatively approved Dec. 16 that tweaks the municipal zoning of a 98-acre parcel of land just south of a future DIA runway. Despite strong opposition from multiple residents, the measure will allow Westside to construct residential homes as part of the High Point at DIA development, a sprawling development in both Denver and Aurora expected to eventually cover 1,800 acres. Westside was precluded from erecting homes in that particular parcel, located between E-470 to the north and East 65th Avenue to the south, under the prior zoning designation, according to city documents.
The city’s planning and zoning commission unanimously rejected the proposed amendment at a meeting in November, citing concerns that future homes would be too close to the expanding airport and detract from residents’ quality of life.
“This proposal would be the closest to DEN and the future runway would significantly impact the quality of life of future residents,” Planning Commissioner Leigh Hettick said before voting against the proposal.
Dozens of residents also voiced their displeasure with the proposed change in the months before city council’s decision.
“We do not need more single, multi-family homes in this area,” resident Tom Bjornson wrote in a message to the city. “There is an overabundance of residential areas without any commercial business to support the growing community.”
First launched as a concept in 2004, the High Point development is eventually expected to include more than 3,000 homes and 12 million square feet of retail space, according to its longtime design firm Consilium Design.
In a statement issued late Friday, airport officials reminded Aurora officials of the cramped situation that played a part in prompting the closure of Denver’s Stapleton Airport decades ago.
“DEN must proactively protect itself from the safety and noise problems that plagued Stapleton,” airport officials wrote. “As part of building Denver International Airport, all neighboring municipalities agreed to implement zoning to prevent the Stapleton situation from recurring. This action by Aurora is contrary to that understanding.”
Denver city attorneys working on behalf of the airport painted Aurora officials as duplicitous due to their own ongoing litigation against the airport for allegations of excessive airport noise in the Adams County portion of the city.
“Aurora finds itself asserting, on the one hand, concerns about noise levels at locations over four-miles from DEN, while on the other hand, approving single-family detached residential development less than one mile from DEN’s planned seventh runway, which would expose those residents to much higher noise levels,” attorneys wrote.
That lawsuit, filed in Jefferson County District Court in 2018, claims the airport reneged on a 1988 agreement designed, in part, to keep airport noise at a minimum.
In an email to Mayor Mike Coffman and top city staff obtained by the Sentinel, Denver International Airport CEO Kim Day raised concerns about the council’s action, particularly given the lawsuit.
“It just seems highly incongruent that Aurora would allow residential development a stone’s throw from DEN while at the same time actively seeking money from DEN over claims of significant noise exposure to residents much farther away,” she said in the email dated Dec. 20, adding that she wants a “productive and collaborative working relationship with Aurora.”
A spokesman for the city of Aurora said staffers are withholding comment on the suit until the complaint can be thoroughly reviewed.
“The city of Aurora has not yet had a chance to review the complaint,” city spokesman Michael Bryant wrote in an email. “We will carefully evaluate any claims that are made.”
The airport lawsuit asks officials to ultimately reverse their approval of the amendment and table it until the litigation is resolved.
— Staff writer Kara Mason contributed to this report
It will be very interesting to follow DIA v. Aurora to see if the judges (Colorado Courts, US Courts) find this distinction controlling and whether they want to apply Justice Douglas’ words to reach an opposite liability based on his analysis in Griggs v. Allegheny.
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