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Hearings Board Final Decision and Order... CENTRAL
PUGET SOUND
I. SYNOPSIS
Within the
corporate limits of the Town of Eatonville is Swanson Field, a small
utility airport, but which serves as a general aviation airport
nonetheless. The Town’s
Comprehensive Plan contains policies to protect the airport from
encroachment of incompatible uses and structures that would pose
dangers to aviation safety and the general public.
In February 2006, the Town adopted development regulations
governing Swanson Field. Ordinance 2006-6 adopted an Aerospace District that specified
permitted uses, and an Airport Overlay District regulating height.
Petitioners
challenged the Town’s action alleging that rather than discouraging
incompatible uses adjacent to the airport, the Town encouraged
incompatible uses. Petitioners
also asserted that the Town’s adopted height restrictions governing
structures in close proximity to the airport posed aviation safety
dangers and were contrary to provisions of the Federal Aviation
Administrations (FAA) regulations and Washington State Department of
Transportation – Aviation Division’s (WSDOT) comments. Petitioners,
WSDOT – Aviation Division, and the FAA commented on the Town’s
proposed development regulations, noting serious incompatibility and
height encroachment concerns that endangered aviation and posed safety
concerns to the general public. Petitioners noted the Town’s Plan
specifically directed compliance with state and federal regulations.
Nonetheless, the Town completely ignored the concerns voiced by
Petitioners and the agencies charged with aviation safety and adopted
the proposed regulations without amendment or revision. The Board found
and concluded that the Town of Eatonville’s adoption of its general
aviation development regulations was clearly
erroneous. The
adopted regulations were internally
inconsistent, did not
comply with its own Plan policies and did
not comply with RCW 36.70A.130(1), RCW 36.70A.510 and RCW
36.70.547. Further, the Town’s disregard for aviation safety, as
expressed in Ordinance 2006-6, caused the Board to enter a determination of invalidity. The
Ordinance adopting the development regulations pertaining to Swanson
Field was remanded to the Town with direction to revise the
regulations to achieve compliance with the Act.
A compliance schedule was established.
II. BACKGROUND On March 23, 2006, Stephen Pruitt and Steven Van
Cleve filed a Petition for Review (PFR)
challenging the Town of Eatonville’s adoption of Ordinance 2006-6
amending the Town’s development regulations related to the Town of
Eatonville Airport – Swanson Field.
The Town had been working on such regulations for an extended
period of time. In April 2006, the Board held the prehearing
conference and issued a prehearing order setting forth a schedule and
the legal issues to be resolved by the Board.
No motions were filed during the time authorized for motions. In June 2006, the parties requested and were granted
a 90-day settlement extension to provide time for them to resolve
their dispute. The Board
received one status report, indicating although two meetings had been
held, the disagreement had not been resolved. In October, the Board received timely briefing from
the parties, as well as several motions.
The briefing received is referenced in this Order as Pruitt
PHB, Town Response, and Pruitt
Reply. On November 6, 2006,
the Board held a HOM at the 20th floor conference room, 800
5th Avenue, Seattle, Washington.
Board member Edward G. McGuire presided at the HOM. Board
members David Earling and Margaret Pageler were present for the Board.
Julie Taylor, Board Law Clerk, also attended. Petitioners Stephen Pruitt and Steven Van Cleve appeared pro
se. Robert E. Mack and Edward G. Hudson represented
Respondent Town of Eatonville. Eatonville
Mayor Tom Smallwood and Mart Kask were also present.
Court reporting services were provided by Eva Jankovits of
Byers and Anderson Inc. The
hearing convened at approximately 2:00 p.m. and adjourned at
approximately 4:00 p.m. The
Board ordered a transcript of the proceeding (HOM
Transcript). On November 13,
2006, the Board received the HOM Transcript. II.
presumption of validity, burden of proof and
standard of review
Upon receipt of a
petition challenging a local jurisdiction’s GMA actions, the
legislature directed the Boards to hear and determine whether the
challenged actions were in compliance with the requirements and goals
of the Act. See RCW 36.70A.280. The
legislature directed that the Boards “after full consideration of
the petition, shall determine whether there is compliance with the
requirements of [the GMA].” RCW 36.70A.320(3); see
also, RCW 36.70A.300(1). See Lewis
County v. Western Washington Growth Management Hearings Board,
139 P.3d 1096 (2006) (“The Growth Management Hearings Board is
charged with adjudicating GMA compliance and invalidating noncompliant
plans and development regulations”).
Petitioners challenge Eatonville’s adoption of Ordinance No. 2006-6,
amending its development regulations. Pursuant to RCW 36.70A.320(1), these Ordinances are presumed
valid upon adoption. The burden is on Petitioners to demonstrate that the actions taken by
the Town of Eatonville are not in compliance with the goals and
requirements of the GMA. RCW 36.70A.320(2). Pursuant to
RCW 36.70A.320(3), the Board “shall find compliance unless it
determines that the action taken by [Eatonville] is clearly erroneous
in view of the entire record before the board and in light of the
goals and requirements of [the GMA].”
For the Board to find Eatonville’s actions clearly erroneous,
the Board must be “left with the firm and definite conviction that a
mistake has been made.” Dep’t
of Ecology v. PUD 1, 121 Wn.2d 179, 201 (1993).
The GMA affirms that
local jurisdictions have discretion in adapting the requirements of
the GMA to local circumstances and that the Board shall grant
deference to local decisions that comply with the goals and
requirements of the Act. RCW
36.70A.3201. Pursuant to RCW 36.70A.3201, the Board will grant deference
to Eatonville in how it plans for growth, provided that its planning
actions or policy choices are consistent with, and comply with, the
goals and requirements of the GMA.
The State Supreme Court’s most recent delineation of this
required deference states: “We hold that deference to county
planning actions that are consistent with the goals and requirements
of the GMA . . . cedes only when it is shown that a county’s
planning action is in fact a ‘clearly erroneous’ application of
the GMA.” Quadrant
Corporation, et al., v. State of Washington Growth Management Hearings
Board, 154 Wn.2d 224, 248, 110 P.3d 1132 (2005). The Quadrant
decision is in accord with prior rulings that “Local discretion is
bounded . . . by the goals and requirements of the GMA.” King County
v. Central Puget Sound Growth Management Hearing Board (King County), 142 Wn.2d 543, 561, 14 P.3d 133, 142 (2000).
As the Court of Appeals explained, “Consistent with King
County, and notwithstanding the ‘deference’ language of RCW
36.70A.3201, the Board acts properly when it foregoes deference to a
. . . plan that is
not ‘consistent’ with the requirements and goals of the GMA.”
Cooper Point Association v. Thurston County, 108 Wn.
App. 429, 444, 31 P.3d 28 (2001); affirmed
Thurston County v. Western Washington Growth Management Hearings Board,
148 Wn2d 1, 15, 57 P.3rd 1156 (2002); Quadrant,
154 Wn.2d 224, 240 (2005). And see,
most recently, Lewis County, 139 P.3d at fn. 16: “[T]he GMA says that Board deference to county
decisions extends only as far as such decisions comply with GMA goals
and requirements. In other words, there are bounds.” The scope of the
Board’s review is limited to determining whether a jurisdiction has
achieved compliance with the GMA with respect to those issues
presented in a timely petition for review. iii.
board jurisdiction,
Prefatory note and preliminary matters
A.
Board Jurisdiction The Board finds that the Petitioners’ PFR was
timely filed, pursuant to RCW 36.70A.290(2); Petitioners have standing
to appear before the Board, pursuant to RCW 36.70A.280(2); and the
Board has subject matter jurisdiction over the challenged ordinance,
pursuant to RCW 36.70A.280(1)(a). B.
Prefatory Note The
Challenged Action: Ordinance 2006-6 established development regulations
at and adjacent to the Eatonville Municipal Airport – Swanson Field.[1]
These new regulations create an Aerospace district – Airport
Overlay zone, which specifies certain uses, distances and imaginary
vertical planes to protect airport operations.
Generally, the permitted uses are airport-related uses as well
as single-family residential, commercial and industrial, as permitted
elsewhere in the Town’s code. The
regulations also establish height limitations for structures in
proximity to the airport’s runway.
See discussion infra for specific relevant provisions of the
Ordinance. Board
Discussion of Legal Issues: The
Board will discuss Legal Issues 1 and 2 together, and then address
Legal Issues 3, 4 and 5. C.
PRELIMINARY MATTERS Oral
Rulings at the HOM: At the HOM the Board heard argument on the Town’s Motions to Supplement the Record and Motion to Dismiss. The following oral rulings were made, and affirmed here. [1] Swanson Field is a general aviation airport that is presently (2002) home to 22 single engine aircraft. The airport operations accommodate local (594), itinerant (2000), and military (15) traffic. Ex.74, WSDOT Aviation Division data on Swanson Field. §
Town Motion to Dismiss
for failure to enumerate specific legal issues in Pruitt PHB – Denied. §
Town Motion to Supplement
the Record o
Item 73 – confirmation
from the Washington State Department of Transportation (WSDOT) regarding a grant for developing an airport plan – Admitted. o
Item 74 – WSDOT
Aviation Division data from 2002 regarding airport activity at
Eatonville Airport – Admitted. o
Item 75 – News Tribute
article regarding Spanaway Airport – Denied. The
Board also noted that the Town’s Index includes items produced after
the 3/8/06 notice of publication of the challenged Ordinance.
These items obviously were not before the Town Council at the
time its decision was made. The
Board’s review is of the record before the decision-makers.
The Board will not strike the “post-decision” exhibits, but
they will be accorded the limited weight they merit.[2]
Abandoned
Issues: The Board’s Rules of Practice and
Procedure provide: A
petitioner . . . shall submit a brief on each legal issue it expects a
board to determine. Failure by such a party to brief an issue shall constitute abandonment
of the unbriefed issue. Briefs
shall enumerate and set forth the legal issue(s) as specified in the
prehearing order if one has been entered. WAC 242-02-570(1), (emphasis supplied). Additionally, the Board’s April 25,
2006 PHO in this matter states: “Legal
issues, or portions of legal issues, not briefed in the Prehearing
Brief will be deemed to have been abandoned and cannot be resurrected
in Reply Briefs or in oral argument at the Hearing on the Merits.”
PHO, at 6 (emphasis in original).
See City of Bremerton, et al., v. Kitsap County, CPSGMHB
Consolidated Case No. 04-3-0009c, Final Decision and Order (Aug. 9,
2004), at 5; and Tulalip Tribes
of Washington v. Snohomish County,, CPSGMHB Case No. 96-3-0029,
Final Decision and Order (Jan. 8, 1997), at 7. Also, the Board has stated,
“Inadequately briefed issues would be considered in a manner similar
to consideration of unbriefed issues and, therefore, should be deemed
abandoned.” Sky Valley, et al., v. Snohomish County, CPSGMHB Case No.
95-3-0068c, Order on Motions to Reconsider and Correct (Apr. 15,
1996), at 3. The
PHO sets forth Legal Issue 4 as follows: Legal Issue No. 4:
Did the Town of Eatonville fail to comply with the review requirements
as defined in RCW 36.70A.106 [by not transmitting these regulations to
state agencies for review]? Petitioners
offer no argument anywhere in the prehearing brief on whether the City
complied with the filing requirements of RCW 36.70A.106.
See Pruitt PHB, at 1-10. Therefore,
the Board deems Legal Issue 4
as abandoned. iv.
legal issues and discussion A. Legal Issue No. 1 and LEGAL ISSUE NO. 2 [1] The Board notes that Item 71 is an excerpt from the Town’s Plan, a key document in this proceeding. The Board takes official notice of this item. The
Board’s PHO set forth Legal Issue No. 1: Legal Issue No. 1:
Do the adopted regulations fail to comply with the requirements of RCW
36.70A.130(1) to develop regulations that are consistent with the
comprehensive plan? The
Board’s PHO set forth Legal Issue No. 2: Legal Issue No. 2:
Do the adopted development regulations fail to comply with the
requirements of RCW 36.70.547 [as per RCW 36.70A.510] to discourage
the siting of incompatible land use near general aviation airports? Applicable
Law The relevant provision of RCW 36.70A.130(1)
states, “(d) Any amendment of or revision to development regulations
shall be consistent with and
implement the comprehensive plan.” The relevant Town of Eatonville Plan Policies
contested by Petitioners are the following:
9.
Discourage
the siting of uses adjacent to airports that attract birds, create visual hazards, or emit
transmissions [that] would interfere with aviation communications
and/or instrument landing systems, or otherwise
obstruct or conflict with aircraft patterns, or result in potential
hazards to aviation. 10. Encourage
the adoption of development regulations that protect the airport from
height hazards by developing a Height Overlay District [that] will
prohibit buildings or structures from penetrating the Federal Aviation
Regulations (FAR) Part 77 “Imaginary Surfaces.” (Emphasis supplied)
2. Protect the viability of the airport as a significant economic resource to the community and the State; [1]
LU-1 states: “To support and improve a rural small town, residential
community comprised largely of single-family neighborhoods together
with a central commercial area and a broad range of other support
services and businesses which occur in identified commercial areas.” 3.
Enhance coordination and consistency between comprehensive
plans, implementing regulations and airport plans; and 4.
Reduce
hazards that may endanger the lives of property and the public. 6.
Encourage
aviation related land uses, commercial and industrial development
within the Aerospace zone. 7.
Discourage
all residential uses within 2,500 feet of the runway ends and limit
the intensity of commercial, industrial or other land uses to five or
less people per acre. (Emphasis supplied). RCW 36.70A.510 states, “Adoption and amendment of
comprehensive plan provisions and development regulations under this
chapter affecting a general aviation airport are subject to RCW
36.70.547.”[5] RCW 36.70.547 provides: Every county,
city, and town in which there is
located a general aviation airport that is operated for the
benefit of the general public, whether publicly owned or privately
owned public use, shall, through its comprehensive plan and development regulations,
discourage the siting of incompatible uses adjacent to such general
aviation airport. Such
plans and regulations may only be adopted or amended after formal
consultation with: Airport owners and managers, private airport
operators, general aviation pilots, ports, and the aviation division
of the department of transportation.
All proposed and adopted plans and regulations shall be filed
with the aviation division of the department of transportation within
a reasonable time after release for public consideration and comment.
Each county, city, and town may obtain technical assistance
from the aviation division of the department of transportation to
develop plans and regulations consistent with this section. Any additions
or amendments to comprehensive plans or development
regulations required by this section may be adopted during the
normal course of land use proceedings. This
section applies to every county, city, and town whether operating
under chapter 35.63, 35A.63, 36.70, [or] 36.70A RCW, or under a
charter. (Emphasis supplied). Board
Discussion Position
of the Parties: Petitioners’
argument is quite straightforward.
Ordinance No. 2006-6 does not discourage the siting of
incompatible uses adjacent to Swanson Field since residential,
commercial and industrial uses can all be located in the Aerospace
District/Airport Overlay District and height restrictions do not
protect the airport from height hazards because it allows structures
to penetrate federally-established height limitations [Federal
Aviation Regulations Part 77 (FAR 77)] adjacent to general
aviation airports. By
permitting these incompatible uses and allowing structural penetration
of the height limitations, the Town has not reduced hazards associated
with the airport and is endangering the lives and property of the
pubic and airport users. These
defects, Petitioners allege, do not comply with, or implement, the
Town’s Plan Policies and specific GMA requirements for general
aviation airports. Pruitt
PHB, at 1-7. Petitioners
contend their position is supported by evidence submitted by the
Washington State Department of Transportation (WSDOT) Aviation
Division and a corroborating e-mail from the Federal Aviation
Administration (FAA). Index Exs. 54 and 58 [Petitioners’
Exhibits A and B] In
response, the Town notes that it continues to work with the State in
developing an airport plan for Swanson Field.
In the meantime, the Town acknowledges that existing residences
at the airport exceed FAR 77 height limits, and that if they were
treated as “non-conforming uses, the owners would find it difficult
to resell at market value or obtain fire and casualty insurance.”
Town Response, at 4. Additionally,
the Town contends that FAR 77 does not prohibit structures of a
certain height. Id. at 7.
Instead, FAR 77 sets up a system of notice, review and comment
by the Administrator of the FAA. Id.
If after review of proposed construction, the FAA considers the
proposal to exceed FAA height standards, then, “the Town may choose
to disallow the construction.” Id.
at 8. However, the Town
argues that residences that exceed the FAR 77 height limits would have
to obtain a variance from the Town Board of Adjustment in order to
exceed the FAA height limits. Id. The Town
acknowledges that under its Comprehensive Plan, LU-1, Policy 10, the
Town commits to adopting regulations to prohibit buildings that would
penetrate the imaginary plane established in FAR 77, but the Town
contends “Ordinance 2006-6 by its own terms is, and was not intended
to be, not the final regulate [regulation] on this matter.” Id.
at 7. Eatonville
claims that what the Petitioners want is to have “air park”
residential development (residences with hangars attached) rather than
having “non-aviation” residential development. Id.
at 9. To the contrary,
the “Town wants the community to utilize the airport in a safe way,
and believes this can be done with some structures that exceed FAR
Part 77 height limits.” Id.
Additionally, the Town states “Some communities may find
residential housing incompatible with the airports (sic), but this is
not true in Eatonville where residential housing has been for years an
acceptable adjacent use.” Id.
at 10. The Town also
contends that FAR 77 merely sets out a process for FAA to comment on
development proposals around the airport; it does not contain
standards or requirements that prohibit any type of use or set height
limitations. HOM
Transcript, at 48. In reply, Petitioners first contend that Ordinance 2006-6 is a final regulation intended to implement the comprehensive plan; it is not an intermediary step as the Town contends. Pruitt Reply, at 7. Secondly, Petitioners assert that state and federal testimony and comment letters were ignored by the Town. Id. And third, since the Town has not defined incompatible uses, it cannot discourage such uses adjacent to Swanson Field – “the Town has never met a land use it doesn’t like.” Id. at 10 [1]
It is undisputed that the Town of Eatonville’s airport, Swanson
Field, is a general aviation airport subject to the provisions of RCW
36.70.547. Board
Analysis: On
its face, Ordinance 2006-6 is not an interim
development regulation; it is a final
regulation,[6]
to “[establish] development regulations at and adjacent to the
Eatonville Airport – Swanson Field.” See
Ordinance 2006-6, Title. As
such, these development regulations must be consistent with, and
implement, the Town’s Comprehensive Plan and comply with the GMA. It
is clear that the provisions of RCW 36.70A.510 and RCW 36.70.547
provide explicit statutory direction for local governments to give
substantial weight to WSDOT Aviation Division’s comments and
concerns related to matters affecting safety at general aviation
airports. Eatonville
“shall . . . discourage the siting of incompatible uses adjacent to
[Swanson Field].” RCW 36.70.547.
Likewise, the FAA’s expertise and decades of experience, as
reflected in FAR Part 77, cannot be summarily ignored.
Both these agencies have statutory authority to inject their
substantial experience and expertise into local governmental matters
involving airport safety. The
primary question for the Board is whether Eatonville’s development
regulations, pertaining to Swanson Field, are consistent with, and
implement, the Town’s Plan and are consistent with the GMA and related statutory requirements
– i.e. RCW 36.70.547. Ordinance
2006-6 Provisions – Incompatible Land Uses and Height Limitations: The Town’s Aerospace District, which apparently coincides with the geographic area of the Airport Overlay District, permits residential, commercial and industrial uses, so long as they do not violate the Airport Overlay District provisions. See Ordinance 2006-6, at 2; Eatonville Municipal Code 18.04.185.A. 3, 4 and 5. The Airport Overlay identifies six specific Zones as displayed in Map B attached to Ordinance 2006-6. The following table from the Town’s regulations displays “Incompatible [and compatible] Land Uses.” Only Zones 1, 2 and 3, the relevant Airport Overlay Zones, are shown. [1]
This is not to say the
development regulations governing Swanson Field may not evolve and be
improved as the Town proceeds with its Airport Plan, as funded and
supported by WSDOT Aviation Division.
See Ex. 73.
Table
1 Incompatible
Land Uses
Ordinance
2006-6, at 11-12; (emphasis supplied).
In
short, the Town identifies schools and day care centers as incompatible
and prohibited uses in Zones
1, 2 and 3. Additionally,
hospitals, nursing homes, churches and mobile home parks are prohibited,
i.e. incompatible, in Zone 1.
However, residential development [apparently up to 4 du/acre
within the UGA], commercial, and industrial use are all permitted, i.e. compatible, in Zones 1, 2 and 3. Even though these uses are permitted, height limitations as
provided in the Ordinance, still apply.
See Ordinance 2006,
at 10 and 7-9. So how do
the height restrictions limit these uses? The
Ordinance establishes five Height Restriction Zones.
It appears to the Board that the primary focus of
Petitioners’ challenge to the height limitations is with the
“Transitional Zone.” The
Ordinance defines the Transitional Zone as, Beginning
at the center of the paved runway and at the same elevation as the
paved runway, extending outward at ninety (90) degrees to the center
of the runway, for one hundred and twenty five (125) feet and rising
to a vertical height of twenty eight (28) feet, then extending further
outward at a defined slope of
five (5) feet outward for each one (1) foot upward until it meets the
horizontal surface which is one hundred fifty (150) feet above the
airport elevation of eight hundred forty three (843) feet, or nine
hundred ninety three (993) feet above sea level.
HEIGHT RESTRICTIONS: No object shall penetrate the imaginary
line created by a slope of seven (5) feet
[inconsistency in original text] outward for each one (1) foot upward.
Ordinance
No. 2006-6, at 8, (emphasis supplied).
Thus, at 125 feet, and perpendicular, from the centerline of
the runway, a structure (apparently only residential structures[7])
could be 28 feet high (i.e. a
4.46:1 slope). Beyond
that point, one foot of height could be added for each five feet of
horizontal measurement (i.e.
a 5:1 slope). Thus, at
175 feet from the runway centerline, a structure could be as high as
38 feet. The Board finds that this section of the height regulation is
internally inconsistent and contradictory since the text indicates a
4.46: 1 slope for the first 125 feet from the runway centerline,
followed by a 5:1 slope extending beyond that point.
However, the “HEIGHT RESTRICTIONS” indicate either a 7:1 or
5:1 restriction from the centerline outward! Consistency
with, and implementation of, the Plan Policies and compliance with RCW
36.70A.510 and RCW 36.70.547: The
Comprehensive Plan Policies cited by Petitioners clearly articulate
and adhere to the explicit requirement provided by RCW 36.70A.510 and
RCW 36.70.547 to discourage the siting of incompatible uses at and
adjacent to a general aviation airport.
See LU-1 Policies 7,
9 and 10; and LU-5 Policies 2, 3, 4, 6 and 7.
Additionally, LU-1 Policy 10 clearly commits the Town to
protecting the airport from
height hazards by developing a Height Overlay District [that] will
prohibit buildings or structures from penetrating the “Imaginary
Surfaces” established in FAR Part 77.
But, do the Town’s identified incompatible uses and height
restrictions implement these Town Plan Policies, and do they comply
with the relevant statutory provisions?
The Board’s answer is NO. In
support of their assertions, Petitioners, at least one of whom is a
general aviation pilot, rely heavily on the comments made by WSDOT
Aviation Division and FAA. RCW
36.70.547, via RCW 36.70A.510, is explicit in its requirement that the
Town consult with WSDOT Aviation Division regarding the identification
and discouragement of incompatible uses.
It is undisputed that the Town provided a draft of its
development regulations for Swanson Field to the WSDOT Aviation
Division. While the
Aviation Division’s comments supported the Town’s use of an
Airport Overlay Zone, WSDOT noted that the regulations “fail to
protect some of the most critical areas adjacent to the airport and
provide a safe environment for aviation users and the general
public.” Ex. 54, at 1. The
WSDOT Aviation Division’s comments continue: [T]he
regulations fail to protect some of the most critical locations
adjacent to the airport in accordance with best management practices. According to historical aircraft accident data from the
National Transportation Safety Board (NTSB), Zones 1 and 2, as well as
areas adjacent to the airport runway within the Aerospace District,
have the highest potential for aircraft accidents.
Zone 3 also has a high potential for aircraft accidents,
especially in the right-hand turning radius, which is the typical
traffic pattern for this airport [Swanson
Field]. These areas
also have high aircraft noise levels.
Residential and other noise sensitive uses are considered
incompatible when located in these zones and have the highest
potential to disrupt the long term viability of an airport. Our
comments and recommendations to correct these deficiencies are as
follows: 1.
The proposed development regulations would permit residential
development within Zone 1. These
areas are located at the runway ends and are also known as the Runway
Protection Zone or RPZ. Recommendation:
Prohibit residential
development and high intensity non residential development in Zone 1. 2.
Most of Zones 2 and 3 south of the airport’s runway are
located within a proposed high-density mixed-use residential district.
This area is largely undeveloped with large ownership patterns.
The proposed street set-aside within the extended runway
centerline is a good first step to improving airport safety; however,
residential density plays a significant role in land use
compatibility. Additionally,
residential density should be decreased within the right turning
radius of Zone 3, due to the typical airport traffic pattern.
Residential clustering provisions may be an alternative
approach. Recommendation:
Zone 2 should be reserved
for commercial or industrial uses.
Residential uses in Zone 2 should be allowed only as a last
resort, and only if clustering. 3.
The Aerospace District as well as the Airport Overlay District
fails to provide adequate setbacks from the airport runway centerline.
The proposed setback is less than the setback required in the
previous code with a minimum lot size of one-half acre and 100 foot
lot widths. Currently,
the Aerospace District is largely undeveloped.
There are approximately 9 residential structures presently
located within 125 feet of the airport runway centerline.
However, at full development, the number of residential
dwellings just along the airport runway could increase from 9 dwelling
units to as many as 40 or 50 dwellings. According
to the NTSB aircraft accident data, areas located parallel to the
airport runway have the highest incidence of aircraft accidents.
Structures this close to the runway would also penetrate the
Federal Aviation Administration [sic Regulations] (FAR) Part 77 airspace surfaces at a higher degree
than if the setback was lengthened, and structures placed further [sic
farther] from the airport runway and primary surface.
Height hazards are one of the leading causes of aircraft
accidents nationally. Two
other residential airparks in the state, Crest Air Park and Desert
Aire, have setbacks from the centerline of the runway of 225 feet and
215 feet, respectfully [sic
respectively]. This is 90
to 100 feet greater then [sic than]
the proposed regulations. Additionally,
the current Aerospace District has many elements that create
unnecessary confusion and directly conflict with the airport overlay.
These include setback provisions and intensity requirements
within the runway approach and departure area (Zone 1). Recommendation:
Setbacks from the airport
runway should be increased to promote airport safety and limit
penetration of FAR Part 77. Non-aviation
residential development should be limited as much as possible,
especially along the airport runway.
The Aerospace District should be reviewed and amended.
4.
The height hazard standards within the proposed regulations are
flawed and, if implemented, would disrupt airport operations,
compromise public health and endanger pilots and the general public.
Height hazards are one of the leading causes of aircraft
accidents. The height standards described in the proposed code do not
conform to federal regulations and would increase allowed structure
heights above the FAR Part 77 airspace surfaces.
The attempt to define new standards for the surfaces creates
confusion with federal regulations and promotes an unsafe environment
for people on the ground and in the air. Recommendation:
Use the Federal Aviation
Regulations (FAR) Part 77 standards to define airspace.
These regulations are supported by years of research and
analysis and have been used nationally for all public use airports for
over 50 years. 5.
The proposed regulations incorrectly reference FAR Part 77
notice requirement application form 7460-1.
It is the individual developer’s responsibility to submit
this application form to the FAA if the proposed development triggers
the application criteria. These
criteria [in the Town’s regulations] are different than whether or
not the proposed development may penetrate FAR Part 77. Recommendation:
Amend the regulations to
correctly reference the application form 7460-1.
A statement should also be inserted into the regulations noting
that the development regulations do not waive the developer’s
responsibility to submit proper applications to the FAA. If
allowed in areas adjacent to the airport, increased residential
density and increased encroachment of navigable airspace will make it
increasingly difficult for Swanson Field to operate.
The challenge for local leaders becomes choosing the right type
of development that allows for the protection of the airport to meet
current and future demands for transportation.
Taking appropriate steps
to address incompatible land use activities during the lifetime of the
airport can decrease the consequences and severity to the public
health and protect the airport as an essential public facility. .
. . Ex. 54, at
2-4, (emphasis supplied). The
FAA strongly concurred with the WSDOT Aviation Division’s concerns.
The FAA stated: We would
like to take this opportunity to let you know that the Federal
Aviation Administration fully
supports the attached letter from the Washington State Department
of Transportation. We
are seriously concerned that the City of Eatonville is not taking the
appropriate steps to address incompatible land use proposals and are
ignoring federal regulations. The
height hazard standards within the proposed regulations, in
particular, are flawed and, if implemented, would disrupt airport
operations, compromise public health and endanger pilots and the
general public. . . . Federal
Aviation Regulation Part 77 is not something that can be arbitrarily
modified to match a particular development proposal.
FAR Part 77 has been in existence for over 50 years . . . and
it should be recognized accordingly.
The Federal Regulations and State Planning guidelines have been
written to take into consideration different sizes and types of
airports. We therefore
recommend that your development regulations be modified to adopt FAR
Part 77 in its entirety. Ex. 58, at
1, (emphasis supplied). These
agencies, with expertise in aviation safety and defining airspace, had
the opportunity to review the Town’s proposed development
regulations. They
provided specific comments noting flaws, which related to height
limitations and incompatible uses and offered recommendations to
correct the noted deficiencies. The
agencies’ comment letters detailed serious conflicts that, if
uncorrected, would endanger those using Swanson Field and the general
public. These comment
letters were available to the Town Council prior to its taking action
on the development regulations; yet no changes were made to address
the serious safety concerns raised by the state and federal agencies
charged with aviation safety. Nor
did the Town pay any heed to its own Plan Policies. Without any technical aviation safety support in its record,
the Town simply adopted the proposed regulations without further
revision or amendment. See HOM Transcript, at 60-61. It
appears to the Board that the Town completely ignored the concerns of
general aviation pilots (Petitioners), the FAA and WSDOT Aviation
Division, the very federal and state agencies charged with aviation
safety at general aviation airports, and the groups the town was
required to engage in “formal consultations” with per RCW
36.70.547. At
the HOM, Petitioners offered an illustrative demonstration, without
objection of the Town, to illustrate FAR Part 77’s height
restrictions in the Transitional Zone extending perpendicular to the
runway. In essence, the
imaginary surface for the Transitional Zone, as set forth in FAR
77.25(e), requires a slope of 7:1 – seven feet outward for each foot
upward. Thus, at 125’
from the centerline of the runway, penetration of the imaginary
surface (obstruction) would occur at approximately 18 feet in height.
The Town’s regulations allow a 28 foot structure.
Under FAR Part 77’s imaginary surface regulations, a
structure would have to be almost 200’ from the runway centerline to
achieve a height of 28 feet and almost 270’ for a 38-foot high
structure. It
is clear that the Town’s height restrictions are contrary to, and
conflict with, FAR Part 77 height provisions.
Nor are the Town’s regulations consistent with, nor do they
implement, the Town’s Comprehensive Plan Policies – LU-1 Policies
7, 9 and 10; and LU-5 Policies 2, 3, 4, 6 and 7. Allowing structures to penetrate the height limits
established by the imaginary surfaces creates a potential obstruction
hindering airport operations. Therefore,
the Town has not complied with the provisions of RCW 36.70A.130(1),
RCW 36.70A.510 and RCW 36.70.547.
Likewise,
the limited definition of incompatible uses in the Town’s
regulations is contrary to the Town’s own Plan Policies and contrary
to WSDOT Aviation Division and FAA comments on incompatible uses.
Allowing extensive incompatible uses to continue developing
adjacent to Swanson Field is also contrary to the Town’s own Plan
Policies and the provisions of RCW 36.70.547.
The Town acknowledges that it authorized the continuation of
incompatible uses in its Ordinance. This
chapter is adopted pursuant to RCW 36.70A.547 and 36.70A.200 which
requires a county, city or town to enact development regulations, to
discourage the siting of incompatible land uses adjacent to general
aviation airports. The
incompatible land use regulations presented in this Chapter differ
from the Federal Aviation Administration FAR 77 height regulations and
the State of Washington Department of Transportation Aviation
Division, suggested planning guidelines regulating land uses adjacent
to general aviation airports.
This departure, however insignificant, is necessitated by the
fact that the Eatonville Airport (Swanson Field) was built and later
expanded before the incompatible land use regulations adjacent to the
general aviation airports came into existence.
Residential development was permitted close to the airport
runway and other developments, such as schools, were permitted to be
built adjacent to the airport property.
At the time, these developments were considered to coexist
safely with the airport operations.
Today, the view at the Federal and State level has changed.
Many of the early permitted developments are now being judged
unsafe by the Federal and State agencies.
However, the Town of Eatonville had the obligation to
accommodate the Federal and State desires and the rights of property
owners at and near the airport. This
chapter attempts to find a compromise that recognizes the Federal
regulations and State planning guidelines and protects the rights and
values of property owners at and around the airport.
By adopting this chapter, the airport is more safe than having
done nothing. Ordinance
2006-6, at 4; (emphasis supplied). Again,
the Board finds that the Town’s development regulations for Swanson
Field do not discourage the siting of incompatible land uses at or
adjacent to the airport thereby hindering airport operations.
These discrepancies are far from insignificant.
Allowing new development, especially residential development
at, and adjacent to, Swanson Field is not consistent with, nor does it
implement, the Town’s Comprehensive Plan Policies – LU-1 Policies
7, 9 and 10; and LU-5 Policies 2, 3, 4, 6 and 7.
Allowing incompatible uses at and adjacent to this general
aviation airport creates serious safety hazards to airport users and
the general public and hinders airport operations contrary to statute.
Therefore, Ordinance 2006-6 fails to comply with RCW
36.70A.130(1), RCW 36.70A.510 and RCW 36.70.547.
The
Town seems extremely concerned with protecting the rights and property
values of the few residents that own structures that would not comply
with the height restrictions or whose uses (primarily residential[8])
are deemed incompatible by the FAA and WSDOT Aviation Division
criteria. The Town is
resistant to making these uses nonconforming.
See Town Response, at 4 and 10; Ordinance 2006-6, at 4; and HOM
Transcript, at 34-37. However,
in its zeal to protect these few property owners, the Town overlooks
the fact that Ordinance 2006-6 not only permits existing uses to
continue, but also allows new construction and development within the
airspace of concern to FAA and to WSDOT.
The Town’s approach does more than permit existing
“nonconforming” uses to continue, it perpetuates incompatibility and exacerbates
the very serious safety concerns raised by WSDOT and FAA.
Instead of discouraging incompatible uses at and adjacent to
Swanson Field, the Town’s adoption of Ordinance 2006-6 is actually
encouraging the development of future incompatible uses.
This is directly contrary to the Town’s own Plan Policies and
the direction of RCW 36.70.547. The
“Variance” Process: As
noted by Petitioners, WSDOT Aviation Division and the FAA, the
Town’s “variance procedures” appear contradictory and confusing.
The Town’s regulations suggest that a person pursuing a
proposal that would not comply with the requirements of the Town’s
Aerospace District or Airport Overlay District may apply to the
Town’s Board of Adjustment for a variance from these regulations. The application for a variance must be reviewed by the FAA
and a determination made [by the FAA] “as to the effect of the
proposal on the operation of air navigation facilities and the safe
and efficient use of navigable airspace.”
See Ordinance 2006-6,
at 14. Nonetheless, the
Town may grant a variance, regardless of the FAA’s determination, if
unnecessary hardship is found by the Board of Adjustment.
Id.
As
noted previously, the Town’s Height Restrictions are already
different than those provided in FAR Part 77.
Yet the Town’s variance process would seem to suggest
additional relief would be available for “hardship.”
Also, as the Board understands the concerns of Petitioners, the
FAA and the WSDOT Aviation Division, the FAA review is based upon FAR Part 77, not what the Town has adopted.
Nonetheless, this provision is ambiguous and unclear. Additionally,
Ordinance 2006-6 also provides that no penetration of the Town’s
height restrictions can occur without a variance approved by the Board
of Adjustment; and that once such variance is received by the
applicant, then the FAA must
be notified. See Ordinance 2006-6, at 3. This
provision is directly contradictory to the variance provisions noted supra,
indicating that the FAA review occurs prior
to considering a variance. These
two “variance” provisions are contradictory, ambiguous and
unclear. Conclusion
Legal Issues 1 and 2 The Town of Eatonville’s adoption of Ordinance
2006-6 establishing development regulations for Swanson Field does not
discourage the siting of incompatible land uses at or adjacent to the
airport thereby hindering airport operations.
Further, these development regulations are not in accord with
FAR Part 77 height provisions. Additionally,
the variance procedures are contradictory and confusing.
These deficiencies and flaws are far from insignificant.
The Town’s action in this matter was clearly
erroneous. Ordinance
2006-6’s provisions, pertaining to height restrictions and allowing
new development, especially residential development, at and adjacent
to Swanson Field, is not consistent with, and does not implement, the Town’s
Comprehensive Plan Policies – LU-1 Policies 7, 9 and 10; and LU-5
Policies 2, 3, 4, 6 and 7. Allowing
incompatible uses and heights at and adjacent to this general aviation
airport creates serious safety hazards to airport users and the
general public and hinders airport operations.
Therefore, Ordinance 2006-6 fails
to comply with RCW 36.70A.130(1), RCW 36.70A.510 and RCW
36.70.547. B.
Legal
Issue No. 3 |
