Monday, December 28, 2015

Judge dismisses Audubon Park airspace appeal

Audubon Park has lost a second round in a legal dispute with the Louisville Regional Airport Authority over efforts to prevent the authority from obtaining airspace easements for planes over homes in the historic city off Preston Highway near Louisville International Airport.

The airport authority sued the city in 2014 after the city fined the authority $13,000 for alleged violations of a new ordinance -condemning noise, fumes and other "pollution" from planes - that  required anyone seeking an "avigation" easement to first obtain a city permit.

The ordinance was meant specifically to address the authority's actions, beginning in 2011, to seek overhead easements from the city's residents - which some wanted to grant - in exchange for doing noise insulation work on their homes under the federally funded QuieterHome Program.

In its suit, the airport authority sought to dismiss the $13,000 citation and have the ordinance declared invalid.  A Dec. 16 ruling by Jefferson Circuit Court Judge Audra Eckerle upheld a March 17 Jefferson District Court that ruled in favor of the airport authority on both requests. The city had appealed the March ruling.

The latest ruling essentially said the city council could not enforce a local ordinance against the airport authority and that the ordinance placed "prior restraint on all communication" concerning a particular type of legal transaction, in violation of the First Amendment.

"We believe both were wrongly decided according to law," said Stephen Emery, Audubon Park's city attorney, adding that other issues remained unresolved in the ruling.

It's "obviously disappointing," and a second appeal is possible, once the city council reconvenes and discusses the matter, Mayor Dorn Crawford said Monday.  Crawford said he's learned the legal process is a "marathon" and "not a sprint."

The immediate effect of the latest ruling on homeowners appears to be minimal, if it stands, although the airport authority would not have to pay the $13,000 fine. Audubon Park has already missed the boat as of Sept. 30 for having insulation work done under the all-voluntary QuieterHome Program, which is administered by the airport authority.

The airport authority completed work by Sept. 30 in the Preston Highway area and moved on to  the University of Louisville area, Skip Miller, the authority's executive director, said.

That "doesn't preclude us from coming back" and reinstating the program along Preston, if that were formally approved, he said. But he didn't indicate that is likely to happen anytime soon.

"Someday we might come back," he said.

In the meantime, Audubon Park households who qualified for the noise insulation work and others who were not included in the QuieterHome work could get some relief from airport noise as the result of legislation introduced last year state by Rep. Jim Wayne of Louisville that's been re-filed during the pre-filing period for the upcoming state legislative session in Frankfort.

The proposed statute would provide a refundable state income tax (even for those who don't owe or pay taxes) for individuals who live near an airport in areas with severe noise levels and purchase sound reducing materials, such as doors, windows and insulation.

Legislative leaders wanted to consider it when a budget would be proposed, and a joint Senate-House committee hearing was held on it in November, Wayne said. The amount of the credit would be equal to the total cost of the noise reduction items installed.

The amount that could be awarded would be limited to $3 million per year, and it's estimated it would take about 19 years to compensate the 9,000 or so residents who could qualify, Wayne said. The idea makes sense, given the millions of dollars in tax revenues generated by airports in state and local taxes, he said.

In Audubon Park, the "nuisance" ordinance, as Crawford describes it, equated granting easements with sanctioning the emission of pollutants by planes and detracting from the character and integrity of the city. In effect, the ordinance makes it unlawful to offer, solicit or accept an easement because of the alleged adverse effects.

After the city council approved the ordinance in late 2013, 13 applicants co-applied with the airport authority for permits the following spring.   But the city said the airport authority was required to get a permit first, even to talk to residents.

Crawford also said residents should be entitled to the insulation work without turning over easements and argued in court documents that the Federal Aviation Administration said easements were not part of the QuieterHome program.

Insulation work on 61 households in Audubon Park that were eligible originally was scheduled for 2011 and 2012, but disagreements over the easements and other delays prevented that from starting.

Crawford still wants the ordinance to be in effect and said he opposes granting airspace easements, even if the airport authority were to pay for them.   It would have "spillover" effect on the whole city, he said.


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