WHITE BEAR TOWNSHIP — The attorney for the late John Benson wants the Town Board to know amending the runway safety zone could spark the airport’s demise.
“If houses are put right under low-flying aircraft, there will be complaints and the township and the airport will ultimately be sued,” warned Al Tschida, a North Oaks attorney who is the executor of Benson’s estate.
At that point, Tschida said, he’ll have to be the “unpopular guy” who exercises the right of reversion dictated in Benson’s will. “If the airport is closed because of what we’ve warned about and fought against, we may have to take some action.”
The attorney was referring to a clause in Benson’s will.
When he died in 1996, Benson gifted the airport to the township on the condition that it operate for at least 40 years. If the airport ceases to exist for whatever reason before that time, the executor can re-gift the land to the American Cancer Society.
The township is considering amending the land use safety zone as a result of a lawsuit filed by Scott and Nanci Stoddard, who own land next to the airport they wish to develop. Attorneys advised the change, claiming it’s in the township’s best interest financially to acquiesce.
At a public hearing March 7, Planner Tom Riedesel reviewed the safety zones, which were adopted in 1985 based on a paved public airport model drafted by MnDOT Aviation. Benson is considered a private airport and has a grass strip runway. New land use safety zone models have been adopted since those standards that recommend a shorter safety zone. In this case, it means eliminating 200 feet of the zone.
“The reconfiguration allows more housing units on the (Stoddard) property than under current zoning,” Riedesel said, adding that larger properties in or near the safety zones have developed in accordance with airport safety zoning.
The Stoddards, who now live in Lakeville, attended the public hearing but did not speak. The couple wants to develop 19 lots on about 6 acres at 5685 Portland Ave.
Thirty years ago, the MnDOT model was the standard, according to Tschida, who has been flying out of Benson Airport since 1976. “The safety zone has kept houses out of the open space where we have to fly. I guarantee you, if you allow houses in that open space you will get complaints and you will be sued.”
Tschida, who was a close friend of John Benson, also offered the board some legal advice regarding the four-year statute of limitations for “a taking of property.”
“It’s too late for the Stoddards to sue,” he pointed out. “If there was a taking, and I don’t think there is since the township has the power to zone and regulate, but if the [ordinance] is overboard, it had to be sued upon within four years of the 1985 passage. And how is it the Stoddards can buy in 1990 and consider it a taking?”
In the lawsuit, the Stoddards claim the safety zone was an unconstitutional taking of their property “to benefit the airport’s private gain.”
Calling the League of Minnesota Cities an “insurance company in disguise,” Tschida told the board the League doesn’t care about Benson Airport and only wants to minimize its expenditures. As a League member, the township was provided an attorney to deal with the Stoddard suit, who recommended amending the zone.
With that, the airport spokesman urged the Town Board to say “no” to the recommendation and to bring a motion for summary judgment to dismiss the case.
“They bought the property 26 years ago,” Tschida said. “The taking occurred before they bought, how can they possibly complain now that something was taken from them? How can they claim their lawsuit was timely? The Stoddards walked into the property knowing there was a safety zone. They have not been deprived of anything.”
The board did not make a decision on the runway change at the March 7 hearing. Since all residents within 350 feet of the proposed rezoning were not notified on time, the public hearing was carried over to Monday, March 21.
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