COMMISSIONER MUSGRAVE COMMENTS CONCERNING THE AIRPORT OVERLAY ORDINANCE

August 12, 2023

by Cheryl Musgrave

The proposed Airport Overlay Ordinance starts out so well.  If you only read the “WHEREAS” section of the beginning, you would believe the intent is to regulate two things: 1) The height of structures on runway approaches/exits and 2) Wildlife that could strike aircraft.

We are led to believe the Federal Aviation Authority has issued an order to require us to enact a local ordinance, but this directive has not been made available to the County Commissioners.  it is unclear whether the Airport Board actually voted to request this Ordinance or give the Director authority to pursue its enactment.

As you read this complex Ordinance, the stated goals of regulating height and wildlife are not clear.  At no point are we clearly given heights that must not be exceeded in any particular geographic area.  It may be that there is a document referred to, but it is difficult to discern.  Instead, we are told building permits will not be issued for new construction – even in newly added subdivisions with vacant residential lots.  These property owners and developers have adhered to the arduous process to create lots in beautiful new subdivisions only to face this Ordinance that will prohibit building anything on these lots, no matter what the height is.

Upon researching the Ordinance, we learn that building permits will not be issued to property that burns down or is otherwise destroyed.  In these cases, the property owner is left with virtually worthless land, depriving families of their hard-earned property without any remedy for compensation by the airport authority or local government.

The secondary role of discouraging problematic wildlife is no easier to understand from a plain reading.  The Ordinance never identifies exactly what kind of wildlife it seeks to prevent from coming in contact with aircraft.

Let’s look at the broader picture.  As best I can discover, the Ordinance affects 8,226 parcels of privately-owned property in the unincorporated county described in Zones B1, B2, C1, and C2.  Adding in the city property, an additional 3,178 properties, the total parcels affected comes to 11,404.  All these owners are directly affected by this Ordinance.  None of them were officially notified of the hearing that the Area Plan Commission held.  None of them were officially notified of the hearing that the City Council held.  The Ordinance passed both these bodies and is in effect in the City of Evansville right now.

Property owners in the unincorporated county received a notice from the Area Plan Commission containing a vague letter from the Airport Authority referencing the scope of the Ordinance for the now-canceled hearing.  The letter from the Area Plan Commission was sent only because the Commissioners requested that a notice be sent to all property owners.

Since the notice was sent scheduling a now-canceled meeting for 5pm today, the Airport Authority’s Executive Director has agreed that a future revised Ordinance is desirable.  In effect, the Airport wishes to withdraw the proposed Ordinance.  As a result, the public meeting scheduled for 5 pm today has been canceled.  Our legal advisors have suggested that a vote to deny the Ordinance is the preferred legal route to withdraw the Ordinance.

Because the Airport Authority has indicated that a new and improved Ordinance will be drafted, let’s return to reviewing the content of the proposed Ordinance.  If the Airport/Area Plan Commission plans to create a revised Ordinance, it is crucial to outline the problematic issues in the current document.

First, official individual notification of all affected property owners of the future Area Plan Commission hearing is required.  This mirrors statutory requirements when rezoning property.

Second, the Ordinance is too broad.  It should be limited to flight line structural height requirements. With respect to height restrictions, if building permits will be denied, market value compensation should be paid to property owners as inverse condemnation by the Airport Authority.

With respect to wildlife, it must be proven to be attracted by the local topography and landscaping and be harmful to aircraft.  For example, Cardinal birds may not be an issue, but Canadian Geese may well be.  Please be specific about exactly what type of harmful landscape features are prohibited and back it up with data.

I will now review specific Ordinance sections and issues:

IN 17.18.020

Boundaries shall not be moved at the whim of the Airport but shall be subject to the same process as adopting the original Ordinance – with notice to all affected property owners and public hearings.

IN 17.18.030

The property owner will be compensated for the market value of any land value taken by Airport by refusal of building permits or failure to purchase undevelopable land, as per the Fifth Amendment of the US Constitution.

There shall be a timeline of 10 business days for the Airport to review building permits.

The provision of 2A on page 6 describing that “a significant concentration of people” is an example of the overreach and lack of specificity of this proposed Ordinance.

It is unclear why people, no matter how many, pose a threat to aircraft arriving or leaving the Airport.  This provision instead appears to attempt to transfer risk from the aircraft to the people and property owner.  In other words, to transfer liability for loss from a crashed aircraft to those who are damaged by the crash.  Does this provision seek to set an acceptable number of casualties from an aircraft crash?

In addition, I have been told that the school corporation has long planned a new school at the current golf course on Petersburg Road.  This Ordinance would prevent this in at least two ways – it would be a new structure (and a permit won’t be granted) in the geographical flight path, and secondly, it would result in a concentration of people in this same geography.  The loss of a new school in this geographic area would be very harmful to the people who live there and to our economic development.

2B prohibits vaguely defined visual obstructions.  This is completely unclear and needs specific definitions.

2C appears to regulate the noise levels that can be heard inside structures within the zone.  It is entirely unclear how to comply with this requirement or the purpose of it.  Who and how would this be enforced?

2D is too broad and too vague as to what type or size of water feature is prohibited and whether this extends to all types of property or what exact wildlife is presenting a danger to aircraft.  Under the current language, land turtles would be included.  It is unclear whether this is enforced by the Drainage Board or the Airport.

Part C is so overly broad that the hapless applicant would have to be an expert in all applicable laws.  This places too great a burden on developers and property owners.  Unless the applicable laws are specified, the burden should not be transferred to the citizens and taxpayers.

This provision and the following adversely effect economic development to the point that they effectively outlaw it.

17.18.040

“B. No legal nonconforming use or associated structure in the AIR-O shall be enlarged, extended, constructed, reconstructed, or structurally altered to increase its nonconformity in a manner that would facilitate the assembly or occupancy of more people on the lot or parcel containing the non-conforming use.”

It’s important to note here that the proponents of the Ordinance have not been able to identify which properties would be “non-conforming.”  This provision prohibits hiring additional staff or increasing the number of people on any non-conforming use.  This provision prohibits the reconstruction of damaged or destroyed property and leaves the underlying land worthless.

This is further emphasized in C1 that prohibits enlarging all existing buildings to accommodate additional employment or business expansion.

This Ordinance effectively prohibits economic development near the Airport.

The map on page 8 is extremely difficult to read.  For example, map section overlays in unclear ways and at least one area, C2, is described here and not referenced anywhere else in the Ordinance.

Overall, the Ordinance is an invitation to lawsuits from property owners deprived of the use of their property without compensation as a form of inverse condemnation.  There is lack of clear relationships between its provisions and the safety of aircraft and people on the ground.  It lacks due process to adjudicate its provisions.

The Ordinance appears to give the Airport Authority the right to inspect without the permission of the property owner.  Unless we are suspending the state and federal Constitutions, this provision is unacceptable.

I reserve the option to revise any objections to this Ordinance as clarifications of its provisions arise.

FOOTNOTES  

The AREA PLANNING COMMISSION voted to pass the AIRPORT OVERLAY ORDINANCE and recommended that members of the Evansville City Council approved this ordinance.  Members of the Evansville City Council passed this ordinance as recommended by the AREA PLANNING COMMISSION. 

Members of the Vanderburgh County Board Of Commission wisely voted down this overreaching bureaucratic ordinance by a unanimous vote.