Ready to take a bite out of the MAC

Lawsuit moves forward against airports commission

A lawsuit against the Metropolitan Airports Commission (MAC) has taken another step toward trial after a judge refused to dismiss the suit that could be worth hundreds of millions of dollars to Southwest residents and others.

Judge Stephen C. Aldrich issued an order in favor of five homeowners in the 60-64 DNL (day-night level) suing the MAC for what they say are broken promises on noise mitigation. The five seek to get full noise mitigation - including air conditioning, insulation, new windows and doors - for Minneapolis and Richfield homeowners in the contour.

&#8220I want the MAC to live up to their promises,” says Warren Bowles of South Minneapolis, one of the five plaintiffs in the case. &#8220The cities of Richfield and Minneapolis, and we as citizens, have really gone out of our way to help the airport and the airport expansion and all, so we've done our share. We want them simply to do their share.”

The MAC had asked Aldrich to dismiss the case for a variety of reasons, including a failure by the plaintiffs to show an express contract between the commission and residents in the 60-64 DNL.

Zimmerman Reed, a Downtown law firm, is representing Bowles and the other four plaintiffs in the case. The plaintiffs hope the suit will be granted status as a class action by Aldrich, enabling the 4,000 or so Minneapolis and Richfield residents in the sound contour to receive awards.

&#8220I don't like the idea of being a part of an overly litigious society. I don't ever want to be part of a frivolous lawsuit. That's not what this is about. In fact, I'm not thinking about getting great damages or anything, other than just having them live up to their promise,” Bowles said.

The core dispute is whether or not the MAC promised residents in the 60-64 DNL contour full noise mitigation packages. The commission contends that it agreed to do some mitigation but never promised or entered into contracts to provide the same packages given to those living in the 65-and-up DNL areas. The five plaintiffs in the lawsuit argue that the MAC made promises constituting a contract; that it agreed in the 1990s to the full-package 60-64 DNL noise mitigation in order to win public and legislative approval of the recently completed airport expansion.

Policy or promise?

MAC Executive Director Jeff Hamiel says that when the MAC's new board was installed after the election of Tim Pawlenty as governor three years ago, it shifted policy but did not renege on any promises.

&#8220It was never intended on our part to do the full mitigation package and treat a home five miles away as if it were located underneath the runway at the Minneapolis-St. Paul airport,” he said. &#8220That's the critical issue in this whole argument.”

In November of 2004, the MAC proposed to help the 5,776 homeowners in the 60-64 DNL (including those living outside of Minneapolis and Richfield) to buy central air conditioning for their homes; owners would have to pay a percentage of the cost based on measurements of noise at their homes. The MAC's Noise Oversight Committee had just weeks earlier approved a plan to give the full mitigation package for residents in the 63-64 DNL contour and air conditioning (without a co-pay) for residents in the 60-62 DNL area. The cost of the NOC proposal was estimated at around $135 million; the more recent plan was tabbed at $55 million.

&#8220There's no question about it that the mitigation program has changed,” Hamiel said. &#8220The question is, has it substantially changed. And in the minds of the citizens, it has. In the minds of this commission, it has been changed slightly to accommodate homeowner participation and a little less financial commitment from the MAC.

&#8220The commission has modified its policy, it has not reneged on commitments. There's a very, very essential and critical language point here. The commission did change or alter its policy, but it did not have a commitment to do the full package out to the 60 DNL. ”

Outrage and action

Airport noise activists and the cities of Minneapolis, Bloomington, Richfield and Eagan were outraged when the MAC announced the change; the municipalities later banded together and sued the MAC in a case scheduled for trial this August.

&#8220If you're a governmental entity and you enter into a contract, you don't have the right to subsequently change your mind,” says Bob Moilanen, a Zimmerman Reed lawyer handling the citizen suit against the MAC. &#8220That's different from a policy change. Policy changes do occur. This was not a policy; this was a contract.”

Moilanen points to a number of documents from the 1990s he says help to prove that a binding contract exists between the MAC and residents in the 60-64 DNL. One of the documents is an airline lease agreement with the MAC dated Jan. 1, 1999. It shows a list of figures for &#8220estimated project costs,” including $150 million for &#8220home insulation (between 60 and 65 DNL).”

Hamiel said he's familiar with the lease agreement and that the figure indicates a ceiling for noise mitigation expenditures in that sound contour.

&#8220It was not ever our intent that we would have to spend 150 [million dollars],” he said. &#8220It was basically, ‘What figure could we select that would cover a variety of issues that may come up in regards to expectations.' So the 150 [million dollars] was, quite frankly, more arbitrary than anything else. It really was a figure that was out there that was on the high side to cover anything that might come along.

&#8220It was not meant that we necessarily had to spend the whole $150 million, but rather we would spend up to $150 million and we would only spend what would be prudent and appropriate given the need.”

Said Moilanen, &#8220There's nothing particularly vague about this agreement. It says $150 million for homes between 60 and 65 DNL. But if he's got some documentation where he's telling the public that no, he didn't really make that commitment, I'd love to see it.”

Hamiel said he agrees that some people perceive some past MAC statements as promises, but said he wouldn't comment on whether or not he also sees them as such.

Moilanen says the suit isn't limited to the $150 million mentioned in the lease agreement.

&#8220I think [the figure] was a floor, that wasn't a ceiling,” he said.

He said other documents show the MAC had agreed to spend up to $400 million on noise mitigation for 14,000 homes.

Hamiel counters by saying that the commission has already spent $338 million, including $232 million on single and multifamily residential mitigations, $45 million on schools and $61 million to acquire 410 properties near the airport.

If the commission's recent $55 million air conditioning plan is implemented, it would bring total MAC expenditures on noise mitigation and property acquisitions to $393 million.

Bowles said that his home is about two miles away from the airport.

&#8220We can't open our windows. You can't live with the windows [open] like you would like to in the spring and summer. Often, even in the house, it can be so loud that it interrupts a conversation.”