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Item G6BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: April 15, 2009 Division: Growth Management Bulk Item: Yes No X Department: Staff Contact: Andrew Trivette AGENDA ITEM WORDING: Discussion and approval of a response letter from the County Administrator to the City of Marathon declining the request to transfer governmental jurisdiction of the Florida Keys Marathon Airport ITEM BACKGROUND: The Growth Management Division received a letter from the Director of Planning with the City of Marathon dated March 9, 2009. This letter requests that Monroe County remit governmental jurisdiction to the City of Marathon for all issues pertaining to comprehensive planning and permitting. The County Attorney has determined that Florida's Airport Law 1945 clearly vests the County with regulatory authority for land use issues associated with the Florida Keys Marathon Airport. The Director of Airports, the Director of Growth Management, and the County Attorney have collectively reviewed the proposed letter in response and support its content. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval TOTAL COST: BUDGETED: Yes _ No — COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes — No X AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing Risk Management DOCUMENTATION: DISPOSITION: Revised 11/06 Included X Not Required AGENDA ITEM # C UNTYSMONROE KEY WEST FLORIDA 33040 (305)294-4641 Suzanne A. Hutton, County Attorney" Robert B. Shillinger, Chief Assistant County Attorney ** Pedro J. Mercado, Assistant County Attorney Susan M. Grimsley, Assistant County Attorney ** Natileene W. Cassel, Assistant County Attorney Cynthia L. Hall, Assistant County Attorney Christine Limbert-Barrows, Assistant County Attorney Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law To: Mayor Neugent & County Commissioners: From: Suzanne A. Hutton, County Attorney Date: March 31, 2009 BOARD OF COUNTY COMMISSIONERS Mayor George Neugent, District 2 Mayor Pro Tem Sylvia 3. Murphy, District 5 Kim Wigington, District 1 Heather Carruthers, District 3 Mario Di Gennaro, District 4 Office of the County Attorney H i t 12a` Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax Re: Land Use Regulatory Authority over the Florida Keys Marathon Airport This office has been asked to opine on whether the County may lawfully exercise land use and zoning regulatory authority over the Florida Keys Marathon Airport. The short answer is that the County is authorized by Florida's Airport Law of 1945 to exercise regulatory authority over the Marathon Airport even though that facility is located within the territorial limits of the city of Marathon. Moreover, any attempt to cede or transfer such authority to the City would likely violate the Federal Aviation Administration's (FAA) grant assurance requirements and place in jeopardy a significant source of funding for airport operations at both County airports. Airports in the State of Florida are governed by the Airport Law of 1945, which has been codified at sections 332.01 - 332.12 of Florida Statutes. For purposes of this opinion, the relevant sections are F.S. 332.02 and F.S. 332.08. When reading those sections, it is important to note that for purposes of the Airport Law, the term "municipality" has been defined to include the County.' Section 332.02 vests the County with the authority to operate and regulate an airport which it owns, regardless of whether the facility is located within or outside of its territorial limits. 2 The statute reads in pertinent part: Every municipality is hereby authorized through its governing body, to acquire property, real or personal, for the purpose of establishing, constructing, and enlarging airports and other air navigation facilities and to acquire, establish, construct, enlarge, improve, maintain, equip, operate, and regulate such airports and other air navigation facilities 1 F.S. 332.01(1). 2 F.S. 332.08(1) & (2). and structures and other property incidental to their operation, either within or without the territorial limits of such municipality and within or without this state .... (Emphasis added). Furthermore, under F.S. 332.02(1), a municipality "may not acquire or take over any airport ... owned or controlled by another municipality of the state without the consent of such municipality" so any transfer of the airport property or control over the property would require Commission approval. The term "control" has not been defined in this context but a reasonable argument could be asserted that the term includes regulatory jurisdiction. Additionally, F.S. 332.08(2) authorizes the County "to adopt and amend all needful rules, regulations, and ordinances for the management, government, and use of any property under its control, whether within or without the territorial limits of the" County. Under both F.S. 332.02(1) and F.S. 332.08(2), it is clear that the County has the authority to exercise its regulatory police powers including land use jurisdiction over the Marathon Airport even though that airport is located within territorial limits of the City of Marathon. The Airport Law serves as an apparent statutory exception to the general rule set forth in part II of chapter 163, the Local Government Comprehensive Planning and Land Development Regulation Act, that a local government has exclusive land use regulatory authority for properties located within its territorial limits. 3 Although the particular interplay between the Airport Law and chapter 163 has not been the subject of any known court decisions or Attorney General opinions, the Attorney General's office has issued opinions that recognize that the Airport Law authorizes a local government to operate an airport and exercise police powers over that facility even if the airport is located outside of the local government's territorial lim its.4 In AGO 82-38, the Attorney General responded to a request by the City of Keystone Heights, which is located in Clay County but operates an airport on land the City owns in Bradford County. The City asked if it had the authority to adopt rules, regulations and ordinances and whether the Police Chief of Keystone Heights had the authority to go into Bradford County to enforce the ordinances adopted pursuant to F.S. 332.08. The Attorney General opined that the City did have the authority to adopt rules, regulations, and ordinances governing the use of its airport and to appoint airport guards and police officers to enforce those rules.5 In AGO 2003-04, Attorney General opined that "[t]he Airport Law of 1945, Chapter 322, Florida Statutes, expressly grants local governments substantial extraterritorial powers to establish and operate airports" including the establishment of an airport police force. The significance of these opinions is that they clearly recognize that the Airport Law vests police powers jurisdiction with the airport owner, even if the airport is located outside of the owner's territorial limits. Although not specifically stated in either opinion, zoning is one of the police powers exercised by local governments. s F.S. 163.3171(1)&(2). 4 See, AGO 82-38 and AGO 2003-84 5 The Attorney General did opine that the City's Police Chief did not have the inherent authority to exercise his police powers at the airport, presumably without the specific designation by the City council to do so. In light of the foregoing analysis, it is my opinion that Monroe County is the governmental unit with zoning authority for the Florida Keys Marathon Airport under Florida law. Accordingly, the County is under no obligation to cede or transfer that authority to the City of Marathon. Additionally, transferring zoning and land use regulatory jurisdiction over the Marathon Airport to the City would likely violate the grant assurance requirements of the FAA. Because the County regularly accepts Federal funding at both airports, it is bound by FAA Grant Assurances and Airport Improvement Program (AIP) Compliance Requirements.6 Of the thirty-nine (39) grant assurances that apply to the County, three are of particular relevance to this issue: Grant Assurance (G.A.) 5, 19 and 29. Grant Assurance 5, which is entitled Preserving Rights and Powers, prohibits the County, as the airport sponsor, from taking any action that would interfere with it ability to comply its G.A obligations. Subparagraph (a) is the relevant portion of G.A. 5 and it reads as follows: It (the sponsor) will not take or permit any action which would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assurances in the grant agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights or claims of right of others which would interfere with such performance by the sponsor. Grant Assurance 19, which is entitled Operation and Maintenance, requires the County to maintain the airport and all facilities which are necessary to serve the aeronautical users at the airport in a safe and serviceable condition. G.A. 19 also states that the County, as the airport sponsor, will not cause or permit any activity or action thereon which would interfere with its use for airport purposes. Grant Assurance 29, which is entitled Airport Layout Plan, requires that the County prepare and update a layout plan which shows, among other things, boundaries of the airport and all proposed additions thereto, the location and nature of all existing and proposed airport facilities and structures and the location of all existing and proposed non -aviation areas and all improvements thereon. The plan and all subsequent modifications to the plan have to be submitted to the FAA for approval. The County, as the sponsor of the Marathon Airport, cannot "make or permit any changes or alterations in the airport or any of its facilities which are not in conformity with the airport layout plan as approved by the Secretary and which might, in the opinion of the Secretary, adversely affect the safety, utility or efficiency of the airport." G.A. 29 goes on to commit the County to remediation by removing, restoring or relocating any change or alteration performed in contravention of the ALP which the Secretary determines adversely affects the safety, utility of efficiency of the airport. The cost of the remedial work is required to be borne by the County. The interplay of these three grant assurances leads me to conclude that any transfer of zoning or land use regulatory authority for the Marathon Airport could have dire financial consequences for both County airports. Under the grant assurances, the County is required to operate the airport as a primarily aviation facility for the benefit of the public. The County is 6 See, FAA order 5190.6. also required to submit an ALP which shows all current and proposed future uses of the airport. The FAA reviews the ALP for conformity with the County's obligations and either approves it or requires modifications. The County must get specific approval from the FAA for any property that is used or designated for non -aviation use. G.A. 5 and G.A. 19 require that the County maintain the ability to implement G.A. 29. Since zoning authority is the power to dictate the nature and use of the zoned area, I am of the opinion that transferring the County's regulatory authority over the airport at the very least would violate G.A. 5 and G.A. 19, and possibly G.A. 29, since the County would no longer be able to control the zoning portion of the ALP. A possible consequence for violation of our Grant Assurance obligations is the loss of federal AIP grant funding, which helps pay for maintenance and improvements at both airports. In conclusion, I am of the opinion and you are hereby advised that the County is authorized by Florida law to be the zoning and land use regulatory authority for the Florida Keys Marathon Airport. In addition, ceding or transferring that authority to the City of Marathon could have dire financial consequences for the operation of that facility because that transfer would likely violate the grant assurances requirements of the F.A.A., a major funding source for the operations of both County airports. C UNTY oMONROE KEY WEST FLORIDA 33040 (305) ZK-4e41 April 15, 2009 Clyde Burnett Marathon City Manager 9805 Overseas Highway Marathon, FL 33050 Re: Florida Keys Marathon Airport Dear Clyde: BOARO OF COUNTY COMMISSIONERS Mayor Charles "Sonny" McCoy, District 3 Mayor Pro Tern Mario Di Gennaro, District 4 Dixie M. Spehar, District 1 George Neugent, District 2 Sylvia I Murphy, District 5 I have been authorized by the County Commission to respond to George Garrett's letter dated March 9, 2009 requesting that the County transfer responsibilities for comprehensive planning and permit responsibilities for the Florida Keys Marathon Airport to the City of Marathon. Because Florida's Airport Law of 1945 clearly vests the County with regulatory authority over land use issues associated with the Marathon Airport and because such a transfer would likely violate the County's obligations under Federal Aviation Administration grants that it receives, the County respectfully declines the City's invitation to transfer that authority to the City. Nevertheless, the County is willing to work cooperatively with the City to ensure that the City Council, acting on behalf of City residents, will have input into zoning and operational issues at the Florida Keys Marathon Airport. Please contact me at your earliest convenience so we may discuss this matter further. Sincerely, Roman Gastesi, Jr. County Administrator RGlrbs CITY OF MARATHON, FLORIDA 9805 Overseas Highway, Marathon, Florida 33050 Phone: (305) 743-0033 Fax: (305) 743-3667 www. ci. marathon. fl. us March 9, 2009 Mr. Andrew Trivette, Director Monroe County Division of Growth Management 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Re: Planning and Permitting Jurisdiction over the Marathon AiWort Dear Mr. Trivette: Monroe County maintains and operates the Marathon airport within the municipal boundaries of the City of Marathon. Historically, there has been a difference of opinion between the County and the City as to which entity should have jurisdiction over land use issues at the airport. Notwithstanding the foregoing, the City has typically interacted with the County in an advisory role concerning the future planning and immediate construction activities within the airport perimeter. The boundaries of the airport have come under the purview of the County, its Comprehensive Plan, and Land Development Regulations. With a few exceptions (e.g. the Fire Station), most development approvals for airport projects have been made by the County. During recent conversations with the City, County administrators have registered a willingness to formally convey the responsibility for Comprehensive Planning and permit oversight to the City. The City continues to register a considerable interest in taking over this responsibility. After all, the airport lies wholly within the boundaries of the City and impacts considerably the visual and auditory perceptions of visitors and residents concerning its utility and attractiveness, not to mention its potential impact on economic development in the City. In that regard, the City of Marathon is hereby formally asking that Monroe County transition responsibilities for Comprehensive Plan and permit responsibilities for the Marathon Airport to the City. The City of Marathon Comprehensive Plan and LDRs contain standards and zoning regulations for development in the Airport District. Therefore, the City is prepared to take over the planning and permit responsibility in relatively short order. The City's commitment to the County in making this request is to continue in joint planning efforts. It is critical that both the needs and interests of the County, as the public owner, and the City, as the host jurisdiction, are met in developing the future vision of the Marathon Airport. On matters of pragmatism, the City commits to a policy engendering no permit and/or impact fees for the review and approval of public airport and related public projects, as the City would expect in reciprocity from the County. Mr. Andrew Trivette, Director Monroe County Division of Growth Management February 4, 2009 Page 2 Thank you in advance for your consideration of this matter. Please do not hesitate to contact me at 305- 289-7111 or by e-mail at &arrettdci.marathon_fl.us if you have any questions regarding the foregoing. George Garrett Planning Director CC City Council Clyde Burnett, City Manager George Neugent, County Mayor Roman Gastesi, County Administrator