Safety vs. Money at MnDOT

Part 3: Flying into the danger zone?

Safety zones at Minneapolis-St. Paul International Airport once banned high-density development. But in April 2004, MnDOT Commissioner Carol Molnau decided to open up the airport's safety zones to make room for commerce.

Jet over Bloomington

Jetliners pass just east of the Mall of America as they come in over Bloomington. High-density commercial development east of the mall used to be prohibited, but the restrictions were changed, allowing the mall’s owners to proceed with plans for expansion.

Photo: Jim Gehrz, Star Tribune

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Whenever a jet lifts off southbound from Runway 4-22 at Minneapolis-St. Paul International Airport, it roars over the Water Park of America, a 10-story complex that stands just one foot below the height limit Minnesota allows for structures built beside an airport.

There was a time when the Bloomington water park, a popular hub for family and corporate outings, could not have been built. It sits on land that was once inside an air traffic safety zone that was off limits to large, high-density development because of the risk of a jetliner crashing into it on takeoff or landing.

But the state Department of Transportation changed that three and a half years ago.

In April 2004, MnDOT Commissioner Carol Molnau decided to open up the airport's safety zones, overruling the recommendations of the agency's own experts, who had warned that such a change would be dangerous.

Molnau's decision, which reversed the stance of her predecessor at MnDOT, cleared the way for more than $1 billion worth of new commercial real-estate development south of the airport.

It also benefited development interests represented by a friend of Gov. Tim Pawlenty named Christopher Dietzen, whom Pawlenty just appointed to the state's Supreme Court.

Bob McFarlin, Molnau's assistant at MnDOT, said the change to the safety zones is "perfectly safe," complies with Federal Aviation Administration rules and was justified by a cost-benefit analysis. But the question of whether Molnau, who declined to be interviewed, let economic pressures trump safety, was a source of strong disagreement within the agency.

One of the staff members who fought the decision to open the airport's safety zone, Mike Louis, MnDOT's airport zoning administrator, also declined to be interviewed. But before Molnau's order, he wrote a memo saying, "People don't become less important as land increases in value."

Louis had warned repeatedly that an airplane crash off the ends of the airport's runways was almost inevitable. Relaxing the safety zones would expose large numbers of people to death and injury in the event of such a crash, he said.

A battle for land

All commercial airports are required by FAA regulations to have safety zones at the ends of each runway.

The FAA requires a minimum of 2,500 feet, which must be clear of all structures. It also strongly urges state and local governments to add an additional buffer by restricting land use. Most do.

But state safety zones aren't uniform, ranging from wide-open spaces at the new airport outside of Denver to the tight confines of Midway Airport in Chicago. At Midway, a jetliner crashed through two fences when landing in 2005 and killed a 6-year-old boy who was in a car on a city street. Eighteen on board the plane were injured.

At the Minneapolis-St Paul airport, the safety zones extend another 4,500 feet -- for a total of 7,000 feet, or about 1 1/3 miles.

Before Molnau's order, this additional zone was split into "A" and "B" components. The "A" section contained tough restrictions on development. In the "B" zone, the restrictions were looser, but still blocked hotels, office buildings, entertainment facilities such as water parks, and other high- density structures.

State law allowed the commissioner of transportation to change the zones, which is what Molnau did in 2004. That year, she signed an order that preserved the concept of the 7,000-foot buffer zone, but essentially eliminated the "A" zone and relaxed the restrictions on the "B" zone.

Her decision applied to all four of the airport's runways, but it really only affected the two that point toward Bloomington; those are the only ones that had developable land within the safety zones.

Her order has allowed the Mall of America and other businesses to launch development plans for retail stores, hotels, office buildings and other structures that had been banned -- including the water park.

This kind of conflict between the need for safety zones and the desire for development is prevalent throughout the country, according to the National Association of State Aviation Officials.

"It's a big deal," said David Cross, director of technical services for the state aviation officials' group. "Community encroachment has become a big problem."

'A matter of life and death'

While Pawlenty and Molnau were running for office in 2002, then-MnDOT Commissioner Elwyn Tinklenberg was standing firm for the safety zones that had been in place since 1984.

He knew that the new north-south runway then under construction just east of Cedar Avenue would increase flights over Bloomington by more than 35 percent, raising the potential there for crashes.

At an August 2002 public hearing, Tinklenberg pointed to a map of Bloomington. "This is probably one of the most valuable development properties in the state," he said, according to a transcript. "It's adjacent to the Mall of America. ... "It is also in the path of a new runway that has been in the works for over 10 years."

Despite the value, Tinklenberg said the land in the runway's path east of the Mall of America needed to be set aside for a safety zone. "This is a matter of life and death," he said. "What this boils down to is a struggle between development pressures and safety pressures."

New leader, new policy

But Tinklenberg's tenure ended when Pawlenty was inaugurated in January 2003. Molnau replaced him.

Ray Rought, who was then director of MnDOT's Office of Aeronautics, continued the fight. He was up against powerful forces -- including a 19-member Joint Airport Zoning Board that was composed of MAC representatives and members from communities surrounding the airport. Officially, the request to loosen the safety zones came from that board, which had studied the issue for several years.

A key part of the board's argument rested on a study that MAC had received from a consulting firm that had ties to airport officials and had received more than $50 million in contracts from MAC over the years. The consultant, HNTB Corp., was hired by MAC to study adjacent lands as part of the proposal to build the new runway. In a September 1997 memo to MAC, a HNTB official said the study would help "document a request for relaxation of land use requirements" in the safety zone.

"Make the case based on balance between probability of an accident and potential costs of severe regulation of land uses," the memo said.

HNTB did exactly that.

By April 2002, HNTB provided research that was beneficial to MAC, the developers and the surrounding communities. The report concluded that the risk of a fatal jetliner crash in the safety zones was very slight.

Nigel Finney, MAC's development director, said, "Our intent was always to do what we needed to do to run a safe airport."

Rought's aeronautics staff found flaws in the study -- the report did not correlate an airplane crash to the probability of death of people on the ground.

But by then, the momentum was going the other way. MAC indemnified members of the board and surrounding communities from crash liability and lawsuits. After that, the board officially called for loosening the safety zones.

Molnau faxed her order to St. Paul on April 22, 2004, from Beijing, China, where she was attending a symposium sponsored by the China Road Traffic Safety Association. The order affected not only the land south of the new runway that Tinklenberg was concerned about; it also opened for dense development land southwest of the older runway that points toward what now is the Water Park of America.

Molnau's decision to override Rought's concerns demoralized a unit that had always prided itself on preserving aviation safety standards.

"There were a lot of people very, very, very upset about it,'' said Steve Hurvitz, a retired MnDOT executive who was Rought's top assistant. "We work hard to give the citizens a safe product. When you reduce a safety parameter, you compromise what has been thought about for a long time."

Rought, who received a national aeronautics leadership award in September, was reassigned to another MnDOT job last June.

The litigator turned judge

Christopher Dietzen was a well-recognized litigator at the Bloomington-based Larkin Hoffman Daly & Lindgren firm; he specialized in the area of real estate deals. In the late 1990s and early 2000s, one of his main clients was the Mall of America, which had big plans for expansion and its eye on an empty, adjacent 33-acre parcel.

As the mall's litigator, Dietzen, 60, met with McFarlin and other MnDOT officials to discuss the process of reducing the safety zones.

With a favorable ruling from MnDOT, Dietzen's client would be able to pursue plans to acquire and expand into the property east of the mall.

Dietzen, who was appointed to the state Supreme Court last month by Pawlenty, declined to comment on any airport zoning discussions he had with mall officials.

"You're now asking me to reveal conversations I had with my client, which are protected by attorney-client privilege," he said in a recent interview. "I can't waive that privilege. Ethically, I can't."

He stressed that there was no connection between his work on behalf of the mall and his appointment by Pawlenty to the state Court of Appeals in December 2004, eight months after Molnau's decision.

As an attorney, Dietzen twice represented Pawlenty against civil charges that he violated campaign finance laws. Pawlenty paid a $100,000 penalty in one case; the second case was dropped.

Last December, Dietzen's former law firm forwarded a check for $500,000 to the airport commission as earnest money toward the mall's option to buy the 33-acre parcel in the modified zone.

Tony Kennedy • 612-673-4213 tonyk@startribune.com Paul McEnroe • 612-673-1745 pmcenroe@startribune.com

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