Special election aside, Tempe and Phoenix still at odds over proposed entertainment district's residential development

Quick Take:

In a special election on May 16, Tempe voters will determine the fate of the Tempe project.

The complete article (4 minutes read)

The city of Phoenix, Sky Harbor International Airport and the Arizona Coyotes have been involved in a legal dispute over flight noise and development of residential areas. This is taking place as voters weigh the issue in the special election on May 16.

The construction of multifamily homes in the development is a settled issue, according to those who support the project. This agreement was signed in 1994 between the two cities.

Conflict arises due to the proposed development of an area near Sky Harbor, which would be affected by aircraft noise.

Hugh Hallman is the former Tempe mayor and the lead negotiator for Tempe in the deal to build an arena that will house the Coyotes. He said that at a news conference on March 30, 1994's intergovernmental agreement "allows residential multifamily (housing in the 65 DNL region).

Federal Aviation Administration defines DNL as 'a person’s cumulative exposure over a 24 hour period expressed as the sound level for an average day in the year. The 65 Day and Night Level contour (DNL), which is considered the outer ring for noise-affected zones, is where the Tempe Entertainment District would be located.

What is the 1994 Agreement?

The two cities were at a standstill in 1994. Phoenix wanted to expand their airport and Tempe was tired of planes flying above the city. In exchange for Tempe's approval of the Sky Harbor expansion, the cities created an agreement between the two governments that regulates the flight paths of arriving and departing aircraft. The agreement is vague on the building details, and refers to federal recommendations for what can be constructed where.

The agreement's section on land uses refers to Federal Aviation Regulation Part 150. This is a federal set of recommendations, which includes land use guidance. In the 1994 agreement the cities agreed to comply with recommendations for new development within Tempe's 'noise-sensitive environs.'

The FAA advises against building homes in the area that would house the entertainment district. The recommendations state that multifamily housing can be built if the buildings are soundproofed, and that the local authorities must decide whether residential or school use is allowed.

Why is Tempe a believer that housing should be permitted?

Tempe Entertainment District supporters point to a report from 1999 on land use produced by Sky Harbor, where the airport stated that the majority of residential buildings in the 65 DNL, including apartments, were permitted. The report says: "All residences within the (65 DNL), and (70 DNL), are marginally compatible with noise."

Phoenix Director of Aviation Services Chad Makovsky told a Tempe Special City Council Meeting on November 29 that "because of the intergovernmental agreement of 1994 between our two towns, I continue objecting to the addition of the 1,995 residences in the 1.2 square-mile high sound contour."

Makovsky’s objection runs counter to Tempe supporters' claims that multifamily housing has been accepted in areas affected by noise for many years. Hallman and Coyotes cited a series of correspondences between Tempe and Phoenix Mayors in 1996, when Tempe purchased land from Bureau of Land Management. The letter exchange between the two cities stated that 'The Mayors plan to proceed with the implementation and development of (noise easements) for any new residential multi-family land use within 65 DNL contour lines'.

Hallman stated at the news conference on March 30, that "everyone behaved as though that was exactly the deal for the past 30 years."

In the letters, then-Tempe mayor Neil Giuliano was a strong supporter of the entertainment district and former-Phoenix mayor Skip Rimsza stated that Tempe would prohibit any new single family residential zoning within the 65 [DNL] boundary line around Sky Harbor.

How has noise been treated historically?

Supporters point out that a 2013 letter concerning the construction of The Grand in Papago Park Center was a sign of approval for residential construction within the 65 DNL contour. The letter, written by Judy Ross at the time of the project's construction in 65 DNL, notes that she is concerned about the project but does not expressly oppose it.

The Grand at Papago Park Center is now a fully operational residential complex.

What legal actions have been taken?

The courts may have the final say on the Intergovernmental Agreement on Noise Mitigation Flight Procedures of 1994.

Phoenix filed a suit against Tempe on March 28. The lawsuit claims that the city of Tempe broke the 1994 agreement by approving changes to the city's zoning and general plan, which are subject to voter approval. The lawsuit claims that the city of Tempe violated the 1994 agreement by agreeing to the sale of 46 acres of land in order to develop multifamily dwellings.

The lawsuit says: "Tempe promised, on its part, to prevent any new residential development along this flight path, and more generally on the east side of the airport."

The Arizona Coyotes are aligned to Tempe. Bluebird Development LLC is the development company owned by Coyotes owner Alex Meruelo. It has filed an intervention in the Sky Harbor case and filed a claim against Phoenix. The developer claims that the Phoenix lawsuit has 'intentionally hurt' him.