Dover Development, LLC v. St. Louis Regional Airport Authority – No. 16-17-09

FAA Docket No:

16-17-09

Author:

Winsome A. Lenfert, Acting Associate Administrator for Airports

Complainant(s):

Respondent(s):

Airport(s):

St. Louis Regional Airport (ALN)

Holding:

Abstract:

Dover Development, LLC, (“Dover”) is a developer of assisted-care facilities and aeronautical user of the St. Louis Regional Airport (“ALN”). Dover was an aeronautical user of ALN flying in and out of the Airport and purchasing fuel at the Airport, but did not own or operate its own aircraft at the Airport, was not an Airport tenant, and did not own or operate an aeronautical business. (Director’s Determination, p. 4.) According to Dover, another developer was building an assisting-living facility on land immediately outside airport property and within the jurisdiction of non-Airport land that was zoned for industrial/commercial activity. (Director’s Determination, p. 4.) Dover contends that the Airport violated Grant Assurance 21 by failing to object to, or take action to stop, the development of a senior-living facility, which would be located in or near the flight path of the Airport’s main runway and protection zone. (Director’s Determination, p. 6.) Moreover, “Dover contends the assisted-living facility will be located within the 65 DNL to 70 DNL noise contour ban and, because of the noise level at the facility’s site, the facility is incompatible.” (Director’s Determination, p. 6.)

The Airport suggested that Dover’s objection to the allegedly incompatible assisted-living facility was based less on concerns regarding the grant assurances than the fact that the new facility would compete with a similar facility that was owned by the Complainant and located two miles away. (Director’s Determination, p. 6.) Specifically, the Airport noted that “at the center of this dispute” is the fact that the facility about which Dover complains is “directly competitive” with one of Dover’s own assisted-living facilities. (Director’s Determination, p. 6.) In calling into question Dover’s motivations, the Airport also made three other arguments: (1) the facility was not impacted by Airport noise; (2) the development did not occur in the runway protection zone; and (3) it did not violate Grant Assurance 21.

The Director reviewed noise contour maps accepted by the FAA as part of a 2008 environmental assessment and concluded that the location of the facility at issue was outside the 65 DNL contour. Under FAA standards, all land uses are considered to be compatible with a DNL less than 65 dB, moreover. (Director’s Determination, p. 6) In any event, “[e]ven had we found the assisted-living facility was incompatible, Dover has failed to show a sufficient nexus to the Airport or provide any specifics as to how it could be harmed.” (Director’s Determination, p. 8.)

The Complainant, Dover Development, LLC, appealed. Three issues presented on appeal: (1) whether Dover had standing to bring its complaint; (2) whether Dover stated a claim for the authority’s violation of Grant Assurance 21; and (3) whether the Director’s reliance on 14 C.F.R. § A150.101(d) was clearly erroneous. (Final Agency Decision, p. 1.)

First, as to standing, the Associate Administrator agreed with the airport and reasoned that “it is not apparent how an aeronautical user, such as Dover, could be directly affected by the mere presence of an assisted-living facility located next to an airport.” (Final Agency Decision, p. 5.) As such, “[t]he Associate Administrator is not persuaded Dover satisfies the requirements for standing based on its occasional casual use of the Airport and its speculative concerns regarding a potential future loss of Airport access.” (Final Agency Decision, p. 6.)

Next, with respect to Grant Assurance 21, Dover argued that the Director erred by failing to use its 2000 map to show the noise contour levels at the facility. “However, Dover still fails to identify evidence supporting the reliability or admissibility of the older, superseded 2000 map.” (Final Agency Decision, p. 7.) “Dover alternatively argues Assurance 21 has been violated, even assuming the facility is located outside the 65 DNL noise contour … [w]hile local needs or values may dictate further delineation based on local requirements or determinations, Assurance 21 does not dictate that all residential use near an airport are incompatible.” (Final Agency Decision, p. 7.)

Finally, Dover raised on appeal an additional issue that the Director erroneously included addition information on 14 C.F.R. Section A150.101(d) not submitted by either party. “A large element of the complaint filed by Dover concerned the issue of whether the land for Holly Brook was with the 65 dB noise contour. The Director may properly use applicable law, regulations, policy and expertise to explain and determine this issue. Doing so was well within the Director’s purview.” (Final Agency Decision, p. 8.)

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