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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Comments On Proposed Changes to Kentucky Airport Zoning Commission Regulations  Posted: November 8, 2012
November 8, 2012

Ms. D. Ann DAngelo
Assistant General Counsel
Transportation Cabinet
Office of Legal Services
200 Mero Street
Frankfort, Kentucky 40622

By email only Ann.DAngelo@ky.gov

Re: Proposed Amendments
602 KAR 50:030 and 602 KAR 50:050

Dear Ms. DAngelo:

These comments are submitted on behalf of the Kentucky Resources Council, Inc., a nonprofit organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the state. KRC provides representation and assistance without charge to individuals and communities on a wide range of environmental, energy and quality of life issues, including advising an unincorporated association of neighbors of the LRAA Bowman Field Airport regarding the LRAA compliance with FAA Part 77 and TERPS standards.

KRC has reviewed the proposed amendments to the above-referenced regulations and offers these comments.

602 KAR 50:030

According to KRS 183.861, the jurisdiction of the Commission “over land use issues” extends to all military airports in the Commonwealth, all public-use airports, heliports, and seaplanes bases in the Commonwealth, and all state-licensed, private-use airports which have a paved runway in excess of two thousand nine hundred (2,900) feet. KRS 183.861 does not refer to “zoning,” but authorizes issuance of “orders, rules, and regulations pertaining to use of land within and around” those facilities “as will promote the public interest and protect and encourage the proper use of the airports and their facilities.”

KRS 183.867 is captioned “Zoning jurisdiction -- Regulations -- Public files” and provides that “[t]he commission shall require that every military and public use airport, heliport, and sea plane base in the state file … maps showing the airport and area surrounding the airport used for approach or landing purposes.”

The commission “shall thereafter designate on the maps, by reference to the regulations or standards promulgated by the Federal Aviation Administration concerning the area required for the safe maneuvering approach and landing of aircraft, the area over which jurisdiction will be assumed for zoning purposes.” The statute also provides for adoption of regulations for those areas over which jurisdiction is assumed as will provide for “proper and safe use” of the area and airport.

Given the more specific reference to “zoning” in KRS 183.867, it appears that the reference in Section 1 of 602 KAR 50:030 should refer to 183.867. The Cabinet is requested to explain the basis for asserting zoning jurisdiction over those facilities identified in 183.861 but not included in 183.867.

602 KAR 50:050

Section 1(a) requires the owner of an airport “as established in KRS 183.867(1)” to file a map and master plan. Yet KRS 183.867(1) does not provide the process for establishing an airport, but instead delimits which types of airports must file maps and master plans. The new language would be more accurate if it provided that “every owner of an airport identified in KRS 183.867(1)…”

Concerning the designation of the area over which the Commission asserts jurisdiction, Section 1(3) provides that the Administrator “shall designate the area of jurisdiction of the commission and the airport surface on the map or master airport plan.” Section 2(1)(b) provides that “[i]f the airport zoning map is adopted by order of the commission….”

KRS 183.867(1) provides that “[t]he commission shall thereafter designate on the maps, by reference to the regulations or standards promulgated by the Federal Aviation Administration concerning the area required for the safe maneuvering approach and landing of aircraft, the area over which jurisdiction will be assumed for zoning purposes.” (Italics added). Additionally, KRS 183.8621 provides that the Administrator “shall keep and be custodian of the records and airport zoning maps adopted by the commission[.]” (Italics added).

It would appear that the regulation should be amended to provide that the designation of the area over which the Commission assumes jurisdiction for zoning purposes will be done by the Commission and not the Administrator, and that the manner in which that designation occurs should be in an order of the Commission. As written the regulation at Section 2(1)(b) implies that designation can occur by some method other than an Order, where the statute doesn’t appear to so contemplate.

KRC is concerned that the designation of the Commission’s jurisdiction be done in a formal manner rather than by administrative fiat, since there are private property interests that are both directly and indirectly affected by the assertion of jurisdiction over such lands and the airspace above them. KRC is concerned that the designation process occurs without meaningful notice to the affected landowners; assuring that a formal Commission Order is issued adopting an airport map provides some additional transparency.

Finally, as written Section 1(2) suggests that the area of the Commission’s jurisdiction can be designated by the Administrator either on the airport map or master plan. The statute is clear in requiring that the designation by the Commission be “on the maps.”

Thank you for your consideration of these comments.

Cordially,

/s/

Tom FitzGerald
Director

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