"Airport Land Use: Relaxed safety zone allows Minneapolis airport development"

Friday, December 28, 2007

Relaxed safety zone allows airport development 
The Associated Press  


BLOOMINGTON, Minn. -- Only a few years ago, the Minnesota Department of
Transportation considered it too dangerous to allow a structure the size of
the Water Park of America to be built so close to the airport. 

Not anymore. 

The popular 10-story complex sits on land that was once inside a safety zone
that was off limits to large, high-density development because of the risk
of a jetliner crashing on takeoff or landing. 

The Star Tribune of Minneapolis reported recently that MnDOT Commissioner
Carol Molnau changed the development rules in April 2004, overruling the
recommendations of agency experts who said such a change would be dangerous.


Molnau's decision cleared the way for more than $1 billion worth of new
commercial real-estate development south of the Minneapolis-St. Paul
International Airport. 

It also helped development interests represented by attorney Christopher
Dietzen, a friend of Gov. Tim Pawlenty who was just named by the governor to
the state's Supreme Court. 

Bob McFarlin, Molnau's assistant, said the change to the safety zones is
"perfectly safe," complies with Federal Aviation Administration rules and
was justified by a cost-benefit analysis. 

Rationale for change

McFarlin stressed to the Associated Press  that the decision to change the
buffer zones was recommended to Molnau by the Joint Airport Zoning Board --
comprised of officials from the airport and local communities -- after
extensive study and public input. 

"It was a very extensive, thorough and detailed process that involved input
from numerous communities and stakeholders and business entities and
government entities in the metro area, with a great deal of examination at
zoning at airports around the country," he said. 

He also said state law gave Molnau the authority to change state zoning
regulations when the economic costs exceed the benefits of those
regulations. 

"If the Legislature didn't want the commissioner of transportation to be
allowed to exercise such judgement -- in concert with the Joint Zoning Board
-- the law wouldn't be there," he said. 

Still, the newspaper reported, the question of whether Molnau let economic
pressures trump safety was hotly debated within the agency at the time. 

One of the staff members who fought the decision to change the airport's
safety zone was Mike Louis, MnDOT's airport zoning administrator. Louis, who
declined to be interviewed by the newspaper, wrote a memo before Molnau's
ruling saying, "People don't become less important as land increases in
value."

He had repeatedly warned that a jet crash was inevitable and that permitting
more development in the safety zones would expose many more people to injury
or death. 

Safety zones

At least 2,500 feet must be clear of all structures at the end of each
runway, according to the FAA. It also urges state and local governments to
add an additional buffer by restricting land use. At the Minneapolis-St.
Paul airport, the safety zones extend another 4,500 feet -- for a total of
7,000 feet, or about 1 1/3 miles. 

Before Molnau's order, this additional zone was split into "A" and "B"
parts. Development was strongly restricted in the "A" section. In the "B"
zone, the restrictions were looser but still blocked high-density
structures, including hotels, office buildings and entertainment facilities
such as water parks. 

State law allowed the commissioner of transportation to change the zones,
which is what Molnau did in 2004. Her order preserved the concept of the
7,000-foot buffer zone but essentially eliminated the "A" zone and relaxed
the restrictions on the "B" zone. 

Her decision applied to all four of the airport's runways, but it really
only affected the two that point south toward Bloomington. Those were the
ones that had developable land within the safety zones, the Star Tribune
reported. 

Molnau's decision allowed the Mall of America and other businesses to launch
development plans for retail stores, hotels, office buildings and other
structures that had been banned -- including the water park. 

Change starts

While Molnau's predecessor as commissioner, Elwyn Tinklenberg, had defended
the safety zones, his term ended in January 2003 when Pawlenty was elected. 

Ray Rought was director of MnDOT's Office of Aeronautics at the time. He
continued to defend the strict buffer zones but was faced with the
opposition of the 19-member Joint Airport Zoning Board that was composed of
Metropolitan Airports Commission representatives and members from
communities surrounding the airport. 

The request to loosen the safety zones came from that board, which had
studied the issue for several years. 

The board argued that a consultant's study received in 2002 by the MAC
concluded the risk of a fatal jetliner crash in the safety zones was very
slight. 

The consultant, HNTB Corp., was hired by MAC to study adjacent land as part
of the proposal to build a new runway. In a September 1997 memo to MAC, an
HNTB official said the study would help make the case for relaxing land use
restrictions "based on balance between probability of an accident and
potential costs of severe regulation of land uses."

Rought's staff found problems with the study. For instance, the report did
not correlate an airplane crash to the probability of death of people on the
ground. 

However, by then the momentum was going against Rought. The MAC indemnified
members of the board and surrounding communities from crash liability and
lawsuits. After that, the board officially called for loosening the safety
zones. 

Nigel Finney, MAC's development director, said, "Our intent was always to do
what we needed to do to run a safe airport."

Molnau issued her order on April 22, 2004. It affected not only the land
south of the new runway; it also opened for dense development land southwest
of the older runway that points toward what now is the Water Park of
America. 

Disagreement

Her decision was demoralizing for Rought's unit, which has always prided
itself on protecting aviation safety standards. 

"There were a lot of people very, very, very upset about it," said Steve
Hurvitz, a retired MnDOT executive who was Rought's top assistant. "We work
hard to give the citizens a safe product. When you reduce a safety
parameter, you compromise what has been thought about for a long time."

Rought was reassigned to another MnDOT job last June. He received a national
aeronautics leadership award in September. 

Dietzen was the litigator for the Mall of America during the late 1990s and
early 2000s while he was a lawyer with the Bloomington-based Larkin Hoffman
Daly & Lindgren firm. The mall owners had big plans for expansion and its
eye on an empty, adjacent 33-acre parcel. 

Dietzen, 60, met with McFarlin and other MnDOT officials to discuss the
process of reducing the safety zones. With a favorable ruling from MnDOT,
Dietzen's client would be able to pursue plans to acquire and expand into
the property east of the mall. 

Dietzen declined to comment to the newspaper on any airport zoning
discussions he had with mall officials. 

"You're now asking me to reveal conversations I had with my client, which
are protected by attorney-client privilege," he said in a recent interview
with the newspaper. "I can't waive that privilege. Ethically, I can't."

He stressed that there was no link between his work on behalf of the mall
and his appointment to the state Court of Appeals in December 2004, eight
months after Molnau's decision. 

Dietzen was appointed by Pawlenty, who Dietzen had twice represented against
civil charges that he violated campaign finance laws. In one case, Pawlenty
paid a $100,000 penalty. The second case was dropped. 

Last December, Dietzen's former law firm forwarded a check for $500,000 to
the airport commission as earnest money toward the mall's option to buy the
33-acre parcel in the modified zone.


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