Phoenix, Tempe at odds over whether 1994 agreement allows residential development in proposed entertainment district

by Steve Crane

EDS: An earlier version of this story mischaracterized Sky Harbor International Airport’s Part 150 noise compatibility program, which deals with airport noise exposure and abatement. The errors occurred in the 6th, 7th, 8th and 9th grafs of the original. The story below has been corrected, but clients who used earlier version are asked to run the correction found here.

  • Slug: BC-CNS-Entertainment District Q&A, 1160 words.
  • Photo, video of mayors, lawsuit and council hearing available (thumbnail, caption below).

By James Powel
Cronkite News

If your time is short:

  • Tempe and Phoenix disagree on whether a 1994 agreement allows for multifamily residential development in the proposed Tempe Entertainment District.
  • A Phoenix Sky Harbor International Airport representative expressed disagreement related to air-traffic noise, and the city has filed a lawsuit against Tempe.
  • The Arizona Coyotes’ development arm has filed a notice of claim against the city of Phoenix for interfering with plans for the team’s new home in the proposed district.
  • Records indicate that Phoenix has not contested building some multifamily residential housing in areas similarly affected by Sky Harbor noise.

TEMPE – As the battle over the proposed Tempe entertainment district is being weighed by voters in a special election, the city of Phoenix, Sky Harbor International Airport, the city of Tempe and the Arizona Coyotes are embroiled in a legal feud over flight noise and residential development.

Those in favor of the proposed development have said that the construction of multifamily housing in the development was a settled matter based on a 1994 agreement between the two cities.

The conflict arises from the proposed development in an area that is close to Sky Harbor and would be affected by airplane noise.

Former Tempe Mayor Hugh Hallman, who is Tempe’s lead negotiator in the development deal that would include an arena for the Coyotes, said at a March 30 news conference that the 1994 intergovernmental agreement “allows multifamily residential (housing) in the 65 DNL area.”

The Federal Aviation Administration defines the DNL level as: “a person’s cumulative exposure to sound over a 24-hour period, expressed as the noise level for the average day of the year.” The 65 Day and Night Level (DNL) contour is the outer ring of what are considered noise-affected areas and is where the Tempe Entertainment District housing would be situated.

What does the 1994 agreement say?

In 1994, the two cities faced an impasse. Phoenix wanted to expand its airport, and Tempe had had enough of planes flying over the city. The cities created an intergovernmental agreement that regulated the flight path of both arriving and departing flights in exchange for Tempe signing off on the expansion of Sky Harbor.

The section of the agreement on land use points to the airport’s Part 150 noise compatibility plan and program, which deals with noise exposure and abatement. In the 1994 agreement, the cities agreed that new development in “noise sensitive environs” within Tempe would comply with the recommendations.

The FAA recommends against building residences in the area where the entertainment district would be built. The recommendations do state that multifamily housing is permissible where the resulting buildings are soundproofed and “where the community determines that residential or school uses must be allowed.” But in a letter to Tempe officials in April, FAA Regional Administrator Raquel Girvin stressed that, “as noted previously, residential housing placed within the 65 DNL is incompatible airport land use.”

Why does Tempe believe housing should be allowed?

Tempe Entertainment District proponents point to a 1999 update to the airport’s Part 150 plan, which they interpret as saying that most residential buildings, including apartments, in the 65 DNL were permissible. Opponents disagree.

Phoenix Director of Aviation Services Chad Makovsky said at a Nov. 29 Tempe special city council meeting that “because of the 1994 intergovernmental agreement between our two cities, I continue to object to adding the 1,995 residential units in the 1.2-square-mile high noise contour.”

Makovsky’s objection is at odds with Tempe supporters’ claims of a historical acceptance of multifamily housing in noise-affected areas. Hallman and the Coyotes pointed to a series of letters exchanged between Tempe and Phoenix mayors during Tempe’s 1996 purchase of land from the Bureau of Land Management. “The Mayors intend to proceed with the development and and implementation of (noise) easements … for any new multi-family residential land use within the 65 DNL contour line,” the cities’ mayors said in their letter exchange.

Hallman said at the March 30 news conference that “everybody behaved as if that’s exactly what the deal was for the last 30 years.”

The letters from then-Tempe Mayor Neil Giuliano, a supporter of the current entertainment district, and then-Phoenix Mayor Skip Rimsza did explicitly state that Tempe would “prohibit any new single-family residential zoning … within the 65 [DNL] contour line around Sky Harbor.”

How have noise-affected areas historically been treated?

Supporters also point to a letter regarding the construction of The Grand at Papago Park Center from 2013 as an approval of residential construction in the 65 DNL contour. The letter from then-Deputy Aviation Director Judy Ross notes a concern that the project is in the 65 DNL but does not explicitly oppose the project.

A residential complex was completed on the site of The Grand at Papago Park Center and is currently operational.

What legal action has been taken?

As voters weigh the three ballot measures that would allow the project to move forward in a May 16 special election, final judgment on what the 1994 Intergovernmental Agreement on Noise Mitigation Flight Procedures allows may be up to the courts.

The city of Phoenix filed a lawsuit March 28 against Tempe. The lawsuit alleges that by approving amendments to the city’s general plan and zoning map, which must be ratified by Tempe voters, the city of Tempe violated the 1994 agreement. The suit says that agreeing to sell 46 acres of city land for the development of multifamily residential dwellings also violates the agreement.

The lawsuit states: “Tempe, for its part, promised to prevent new residences from being developed along much of this flight path and, more generally, on the Airport’s east side.”

The Arizona Coyotes have aligned with Tempe. The development company of Coyotes’ owner Alex Meruelo, Bluebird Development LLC, has filed to be an intervenor in the Sky Harbor lawsuit and has filed a notice of claim against the city of Phoenix, saying the Phoenix lawsuit “intentionally harmed” the developer.

Our sources:

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Residential development in the proposed Tempe Entertainment District is the flashpoint in a legal feud between the cities of Phoenix and Tempe as well as the Arizona Coyotes. (Photo courtesy of the Arizona Coyotes)