Department Of Transportation State Of California
In the Matter of the Application of: Case No: OAH -L-1998040119
Regarding The Noise Variance Application) Of City Of Los Angeles Department Of Airports (Van Nuys) Applicant
Mcdermott, Will & Emery Thomas A. Ryan (State Bar No. 143148) Andrea K. Mcintosh (State Bar No. 190611) 2049 Century Park East, Suite 3400 Los Angeles, California 90067 (310) 2 7-4110 Attorneys For Class "C" Intervenors
The Class "C" Intervenors hereby submit their initial closing brief
The evidence presented at the variance hearing demonstrated beyond any legitimate dispute that the City of Los Angeles ("City") is entitled to a variance, pursuant to Title 21 California Code of Regulations § 5053 et seq (the "California Noise Standards"), permitting it to continue operating the Van Nuys Airport ("Airport"). Moreover, the evidence showed that the variance should not be and indeed legally cannot be conditioned on the imposition of any operational constraints -- such as a phase-out of Stage 2 jets, a non-addition rule banning new Stage 2 jets, a hush kit requirement for existing Stage 2 jets or a complete ban on jets weighing over 12,500 pounds -- at the Airport. Specifically, the evidence proved the following:
The Airport is a substantial economic benefit for the San Fernando Valley generating hundreds of jobs and more than $ 1.2 billion in annual economic activity.
That benefit comes at a price -- the Airport's noise impact area -approximately 58 acres of residences located north and south of the Airport's runways which are subjected to aircraft noise greater than 65 db CNEL.
The City has, however, now committed itself to eliminate completely that noise impact area - - the stated goal of the California Noise Standards. The City has already funded a sound insulation program which should achieve the goal within the variance period. The California Noise Standards expressly recognizes that such a soundproofing program is a fully acceptable mechanism for eliminating, a noise impact area.
The City's soundproofing program, which will cost approximately $ 15 million (of which $ 12 million may be ultimately recovered from the federal -Government but not destroy any jobs, is currently the only economically and technologically feasible means of completely eliminating of the Airport's noise impact area. The evidence showed that the alternative approaches advocated by the Class A and B Intervenors - imposing operational constraints at the Airport in the hope of eliminating the Airport's noise impact area - - would cost, at a minimum, between 200 jobs and 600 jobs and S40 million to over $500 million dollars, without any guarantee of actually eliminating the Airport's noise impact area.
In particular, there is no factual basis in the record demonstrating that imposing any of the proposed operational constraints would actually decrease the Airport's 58 acre noise impact area, which constitutes less than 5% of the acreage of land within the Airport's 65 dB CNEL contour. The lack of such evidence leaves unanswered the question of whether the noise reduction attributable to operational constraints would lessen the noise impact area or merely lessen the noise over the approximately 1,000 acres of "compatible" land within the Airport's 65 db CNEL contour. Nor did the evidence answer the question of whether operational restraints would actually reduce noise heard by Southern California residents or merely shift that noise from the Airport to other Southern California airports. In short, the actual benefits, if any, of operational constraints remain a matter of' speculation -- not evidence.
Finally, independent of both the significant job loss associated with the imposition of operational constraints and the uncertain benefits of such constraints, federal law bars the imposition of operational constraints on the airport as part of this variance proceeding. As CalTrans own counsel stated during the hearing, I would join with the airport and the intervenors in agreeing that no specific condition can be imposed on the variance which would address the control of aircraft in flight." [1]
A. The City and Airport
The City owns and operates the Airport. The Airport serves as the main general aviation airport for the Los Angeles area, [2] relieving congestion at the area's other regional airports, which accommodate commercial air carrier operations. (See RT: Vol. II, pp. 140-144)
B. The Airport's Noise Impact Area
The Airport monitors the noise created by aircraft operations pursuant to the California Noise Standards. (See Exhibit VNY-27) That monitoring indicates that since the issuance of the Airport's last variance the Airport's noise impact area ("Noise Impact Area") has varied between 45 and 60 acres of land and the majority of the Noise Impact Area is directly north or south of the Airport's main north/south runways. (See Exhibit VNY-27, Exhibit C-2, Exhibit C-43) That acreage accounts for approximately 5% of the approximately 1,000 acres of land within the Airport's 65 dB CNEL contour. (Id.) 95% of the land within the Airport's 65 dB CNEL contour is not within the Noise Impact Area since that land is either Airport property or land dedicated to manufacturing/commercial operations. The Airport's Noise Impact Area only consists of "incompatible" land within the 65 dB CNEL contour. Incompatible land is defined as residences, schools, houses of worship or hospitals. See Title 21 California Code of Regulations § 5014. There are no schools, hospitals or houses of worship, however, within the Airport's Noise Impact Area. (See VNY-27, C-43) Rather, the Airport's Noise Impact Area consists of a number of apartment buildings and single-family residences. (Id.)
C. Intervenors A
Intervenors A consist of individuals and entities who purport to reside within the Airport's Noise Impact Area. (AR: I and II) Only one such individual, however, actually chose to testify against the Airport at the hearing. (RT: Vol. XI, pp. 37-42) Intervenors A were represented at the hearing by a non-lawyer activist who lives outside the Noise Impact Area. If that activist did not represent Intervenors A, he would have been a member of Intervenors B.
D. Intervenors B
Intervenors B consists of individuals and entities who do not purport to live within the Airport's Noise Impact Area. (AR: I and II) Rather, they reside outside the Noise Impact Area, but within three miles of the Airport. The class was allowed to participate in the proceeding following the proffer at a prehearing conference by a representative of the class that it would offer evidence that the Airport's Noise Impact Area would expand over the course of the next various period to include their residences. In fact, no such evidence was ever presented at the hearing.
E. Intervenors C
Class C consists of Airport tenants and their employees who work within the Airport's Noise Impact Area. These tenants and their employees work as fixed base operators and service and maintenance operators. (AR: I and II)
The California Noise Standards
Section 5012 of the California Noise Standards established the goal that every airport proprietor in California eliminate, as soon as economically and technically feasible, its noise impact area, defined as the "Incompatible land" within the airport's 65 dB CNEL contour. While the California Noise Standards set the goal of eliminating noise impact areas, it also recognized that it might not always be possible to achieve the goal. Therefore, the California Noise Standards expressly authorize the issuance of variances which entitle the state's airports to continue to operate while they attempt to eliminate their noise impact areas. Specifically, Section 5053 of the California Noise Standards, which governs this variance proceeding, provides, in pertinent part, that:
The Department may grant a variance if to do so would be in the public interest. In weighing the public interest, the department's considerations include but are not limited to the following:
(a) The economic and technological feasibility of complying with the noise standards set by these regulations,
(b) The noise impact should the variance be granted;
(c) The value to the public of the services for which the variance is sought; and
(d) Whether the airport proprietor is taking, good faith measures to the best of its ability to achieve the airport noise standards.
Title 21 California Code of Regulations § 5053.
It must be noted, however, that in determining what is or is not feasible, the California Noise Standards expressly acknowledge that they cannot require an airport to act contrary to federal law. See Title 21 California Code of Regulations § 5005. As detailed below, the evidence fully warrants the granting of a variance.
1. The Cost of Eliminating The Noise Impact Area
a. Soundproofing
The Airport's Noise Impact Area consists of 140 single-family homes and a number of apartment buildings (consisting of 913 units) located on 58 acres of land north and south of the Airport's runways. (RT: Exhibit C-2, Exhibit C-41, Exhibit C-43, Vol. V, pp. 96-97) The total cost of soundproofing the homes and units is estimated to be $14,456,000. That calculation assumes that the cost of soundproofing each home is $25,000 and each apartment unit is $12,000. (See Exhibit VNY-43, Exhibit C-46) The City has already committed to, and indeed funded, $ 15 million for a soundproofing program which should completely eliminate the Airport's Noise Impact Area within the next variance period. (RT: Vol. V, p. 184) No Jobs at the Airport would be lost as a result of the soundproofing program.
b. Imposing Operational Constraints
No evidence was introduced during the two-week proceeding which suggested that it is actually possible to eliminate completely the Airport's Noise Impact Area though imposing operational constraints at the Air-port, absent shutting down the entire Airport. There were, nonetheless, requests in Intervenors A's and Intervenors B's discovery, responses that certain operational constraints be imposed on the Airport. Specifically, Intervenors A and B advocated: (1) a phase-out of Stage 2 jets, (2) a non-addition rule applicable to Stage 2 jets, (3) a hush-kit requirement for Stage 2 jets, and (4) the ban of all Jet aircraft weighing over 12,500 pounds from the Airport as conditions of any variance. (RT: Exhibit C-31) These suggestions should be dismissed.
Simply stated, such conditions would destroy the jobs of hundreds of hard working people. The obvious harm to those people and the families they support clearly renders such operational constraints economically infeasible. (RT: Exhibit C-44) Unrefuted expert testimony by John Kennedy established that while t he exact cost of the various proposed constraints would depend upon a fundamental decision by aircraft owners as to whether they chose to incur the cost of complying with the particular constraint and remain in operation at the Air-port or avoid that cost of the constraint by relocating their operations to another regional airport which did not impose such constraint, the cost in either event would be prohibitive. [3] (RT: Exhibit C-44) Mr. Kennedy's testimony established that the minimum cost of imposing the various constraints championed by Intervenors A and B would be as follows:
The cost of phasing-out Stage 2 jets would range from $45,455,500 (and 332 jobs) if Stage 2 simply jets left the Airport to $525,165,000 if the Stage 2 jet operators decided to stay at the Airport and exchange their Stage 2 jets for quieter Stage 3 jets. [4] (RT: Exhibit C-44, RT: Vol. V, pp. 20-25)
The cost of imposing a non-addition rule on Stage 2 Jets would range from $29,268,900 (and 2 10 Jobs) if no new Stage 2 jets were not allowed to replace the Stage 2 jets which historically leave the Airport every three years to $361,200,000 if the departed Stage 2 Jets had to be replaced with quieter Stage 3 jets. (RT: Exhibit C-44, Vol. V, p. 20-25)
The cost of requiring hush-kits for all Stage 2 aircraft would range from $45,455,500 (and 332 jobs) if non husk-kitted Stage 2 Jets simply left the Air-port to $83,040,000 if all Stage 2 Jets were either hush-kitted or replaced with quieter Stage 3 Jets. (RT: Exhibit C-44, Vol. V, pp. 20-25, p. 36)
The cost of imposing a ban on the operation of all Jet aircraft weighing over 12,500 pounds would be, at a minimum, $90,91 1,000 and 664 jobs, since those jets would simply have to leave the Airport. This cost is double the cost of phasing out the Stage 2 Jets since all the jets based at the Airport weigh over 12,500 pounds, while only half of the jets based at the Airport are Stage 2 jets. (RT: Id.)
Given the above cost estimates, Mr. Kennedy opined that the far more likely scenario is that some jet operators and thus jobs would simply leave -the Airport. (RT: Vol. V, p. 41)
The testimony also established that those lost jobs would have very human consequences. For example, Mr. Robert Diaz, a single father, is an interior supervisor at the Jet Center, where he has worked for 18 years. (RT: Vol. IX, pp. 10- 12) The Jet Center is a maintenance company at the Airport which employs over 200 people. 70% of the Jet Center's business is Stage 2 Jets and 80% are Jets weighing over 12,500 pounds. (RT: Id.) As Mr. Diaz explained, if the operational constraints advocated by Intervenors A and B were adopted, the Jet Center's jobs would disappear. (RT: Vol. IX, p. II) Likewise, Mr. Clay Lacy testified that his business, Lacy Aviation, which employs over 100 people, is based on Jets all of which weigh more than 12,500 pounds and that more than half of which are Stage 2 Jets. Mr. Lacy, who has been at the Airport since the early 1960s, testified that he would have to close his company if the proposed operational constraints were imposed. Mr. Lacy further admitted that he was considering moving his business to another regional airport given the possibility that operational constraints might be imposed at the Airport. (RT: Vol. IX, pp. 21-33)
2 The imposition of Operational Constraints is barred by Federal Law
Any attempt to impose operational constraints as part of this proceeding notwithstanding the lost Jobs is also bar-red as a matter of federal law. Plainly stated, I federal courts have twice struck down variance conditions seeking to impose operational constraints at California airports. San Diego Unified Port District v. Gianturco, 651 F-2d 1306 (9th Cir. 1981); Air Transport Ass'n v. Crotti, 389 F. Supp. 58 (N.D. Cal. 1975)
In Gianturco, the Ninth Circuit affirmed an injunction against the State of California's effort to require a stricter curfew than that established by the proprietor of Lindbergh Field through the imposition of a condition in a variance proceeding. Gianturco, at p. 1316. The Ninth Circuit noted that Congress had reaffirmed its preemptive intent with respect to aircraft noise regulation in the Quiet Communities Act of 1978, Pub.L. 95-609, 92 Stat. 3079 (1978). Gianturco, 651 F.2d at pp. 1312-16. In Crotti, the federal district court, consistent with the Ninth Circuit's reasoning in Gianturco, concluded that an attempt, by the State of California in a variance proceeding to regulate airport noise levels by imposing sanctions against an aircraft owner exceeding a specified single event noise exposure level was a per se invalid exercise of the state's preempted police power. Crotti at pp. 62-64.
Were the above decisions not sufficient to demonstrate that any effort by the State of California, as a non-proprietor, to regulate actual operations at the Airport in the interests of noise control are preempted, in 1990, Congress adopted the Airport Noise and Capacity Act of 1990 ("ANCA"), currently codified at 49 U.S.C. § 4752 1, et seq. confirming, its intent to bar state and municipal regulation of noise. In adopting ANA, Congress expressly found that "aviation noise management is crucial to the continued increase in airport capacity," that "community noise concerns have led to uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system," and that "a noise policy must be carried out at the national level." § 47521 (1), (2), (3)(emphasis supplied). Based on these policies, ANCA established strict federal review and approval requirements for the adoption by an airport proprietor of operation constraints. See 14 F.A.R. Part 161.
CalTrans does not contest this point. During, this variance proceeding CalTrans' own counsel admitted that the State could not impose operational constraints, specifically a ban on aircraft weighing more than 12,500 lbs., as part of this variance. Mr. Thelen stated, in pertinent part, that:
The department concedes that it has no jurisdiction over aircraft in flight and, therefore, over setting weight limits on aircraft taking off and landing. . . . I would join with the airport and the intervenor in agreeing that no specific condition can be imposed on the variance which would address the control of aircraft in flight. (RT: Transcript for September 17, 1999, at p. 127, lines 13-23.)[5]
B. The Noise Impact Should the Variance Be Granted
The evidence showed that the Airport's Noise Impact Area has been basically stable, ranging between 45 and 60 acres, over the past decade. (See Exhibit VNY-27) There was no evidence offered projecting whether the Airport's 65 dB CNEL would grow or decrease over the next three years. (See VNY 3 1 -38.) Absent any such evidence, the only possible conclusion which can be drawn is that, absent soundproofing, the Airport's Noise Impact Area will remain substantially constant, fluctuating slightly to reflect seasonal changes in activity, if a variance is granted .
C. The Value to the Public of Services for Which the Variance Is Sought
The evidence showed that the Airport is responsible for $1.2 billion dollars a year in economic activity in the San Fernando Valley. (See RT: Vol. 11, p. 111, lines 16-23, Exhibit VNY 12-22) The evidence also demonstrated that the Airport is responsible for hundreds of aviation related jobs. The evidence also indicated that those Jobs are a direct support to the region. [6]
D. Whether the Airport Proprietor Is Taking, Good Faith Measures To the Best of Its Ability To Achieve the Airport Noise Standards
In addition to commencing its ongoing soundproofing program, the evidence showed that City has made numerous efforts at achieving the Noise Standards' stated objective of eliminating the Airport's Noise Impact Area. (RT: Exhibits VNY- 1, 6, 7, 8, 9, 10, 11, 12, 16, 36 and 38) Notwithstanding those efforts, Intervenors A and B repeatedly attacked the City during the variance hearing "as not taking good faith measures to the best of its ability" to achieve the goals of the California Noise Standards. (RT: Vol. VIII, pp. 57-58) They cited, as an example of this lack of good faith, the City's failure to enforce a so-called "12,500 lb. rule" purportedly banning the use of jets weighing more than 12,500 lbs. at the Airport. (RT: Id.) This assertion is misplaced for three independent reasons.
First, there has never been an enforced "12,500 lb rule" at the Airport. Rather, there was and still is a ban on air carrier operations. [7] Intervenors A and B, nonetheless, describe the City of Los Angeles Department of Airport Resolution No. 13369 as creating a 12,500 lbs. rule. An actual reading of that resolution, however, reveals that the Resolution No. 13369 creates no such ban. Rather, it resolved and only resolved as follows:
NOW THEREFORE, BE IT RESOLVED that the Board of Airport Commissions determined that this action is exempt from CEQA requirements, reaffirmed its policy restricting Van Nuys Airport to general aviation and unscheduled air taxi operations, and specially prohibited the operation of other scheduled and unscheduled air carrier commercial flights to and from Van Nuys Airport except with the express 2 consent of the Board. (RT: Exhibit A-3)
In short, the resolution barred the introduction of air carrier service at the Airport absent express consent of the City's board of airport commissioners. [8] The City has fully enforced Resolution 13369, since no air carrier operations are allowed at the Airport.
Second, the evidence shows that if a 12,500 lb. ban was now introduced at the Airport most, if not all, of the tenants at the Airport would be forced to move or close, throwing hundreds of people out of work. (RT: Vol. VIII, pp. 57-58) [9]
Third, and most importantly, federal law bars the imposition of the 12,500 lb rule as a variance condition. As Mr. Thelen, CalTrans' own counsel, admitted at the heading:
The department concedes that it has no Jurisdiction over aircraft in flight and, therefore, over setting weight limits on aircraft taking off and landing. (RT: Transcript for September 17, 1999, at p. 127.)
Given these factors, the City's alleged "failure" to enforce a ban on jets weighing over 12,500 lbs., was no failure at all.
Rather, the real relevance of the charge of a lack of "good faith" in this proceeding 8 is that it highlights the deep distrust which exists between the various parties. That distrust, which is the outgrowth of a very real political dispute between the parties as to what should be done and what legally can be done at this Airport to address the "noise" 1 issue, has been the major obstacle to achieving the goals of the California Noise Standards. On the one hand, individuals and entities supportive of Airport operations, including the Class C Intervenors, oppose operational constraints which will cost hundreds of jobs and interfere with interstate commerce. These groups have long advocated the imposition of land use mitigation measures such as soundproofing, which are fully acceptable under the California Noise Standards, as the most appropriate mechanism to eliminate the Airport's Noise Impact Area. On the other hand, individuals who live outside the Airport's 65 dB CNEL contour, but who are nonetheless annoyed by aircraft noise, desire operational constraints at the Airport which would decrease the level of aircraft noise they hear. Since these individuals reside outside the 65 dB CNEL contour, they oppose soundproofing within the 65 dB CNEL contour because it will quote "do nothing for them." Quite frankly, and with some justification, they fear soundproofing will decrease their political leverage and their ability to obtain, through more "political" forums, future reductions in aircraft noise. These individuals thus have an interest in ensuring that the Airport's Noise Impact Area is not eliminated in compliance with the California Noise Standards.
The existence of the Noise Impact Area enables these individuals, who are outside the Noise Impact Area and will always be outside the Noise Impact Area, to maximize their political leverage in the ongoing, and perhaps never ending, debate over airport noise. The problem with these individuals' position is that they are fighting their battle in the wrong forum. A variance proceeding, under the California Noise Standards, is only concerned with the elimination of the Airport's Noise Impact Area. It requires nothing more than the elimination of the Airport's Noise Impact Area. The City has now come forward with a cost-effective program to do just that. If Intervenors A and B desire more, they must look elsewhere for their remedy. (RT: Vol. VII, p. 126)
Based on the foregoing, the Class C Intervenors respectfully request that the City be granted a variance conditioned only upon the timely completion of the City's announced soundproofing program.
DATED: February 22,2000 McDERMOTT, WILL & EMERY THOMAS A. RYAN ANDREA K. McINTOSH By Thomas A. Ryan Attorneys for the class "C" Intervenors
[1] While a variance order thus cannot impose operational constraints on the Airport, it can, of course, require the Airport to pursue noise mitigation measures. In particular, it can obligate the Airport to promptly proceed with the elimination of the Airport's noise impact area through the announced soundproofing program.
[2] The City also owns and operates Los Angeles International Airport, Ontario International Airport and Palmdale International Airport, all located within California and subject to the California Noise Standards. (See RT: Vol. II, p. 141, lines 14-16)
[3] Mr. Kennedy is currently the President of Air-ports Corporation of America ("ACA"). Prior to his tenure at ACA, Mr. Kennedy managed Teterboro Airport and Westchester County Airport, the two major general aviation airports in the New York area and was a senior executive at Eastern Airline and Pan Am Airline. (RT: Vol. V, pp. 11-12) Mr. Kennedy was previously retained by the City to analyze the economic consequences of various proposed operational constraints at the Airport and to assist in preparing a masterplan for the Airport. (RT: Vol. V, pp. 11-16)
[4] Hush-kitting, is not currently technologically feasible for all Stage 2 Jets at tile Airport as the Federal Aviation Administration has not yet approved a hush-kit for certain Stage 2 Jets. (RT: Vol. V, p. 32)
[5] The copy of this transcript, as received by Class C, did not have a volume number on it.
[6] Each of the tenant employees who testified at the hearing lives within six miles of the Airport. (RT: Vol. IX, p. 133 and p. 17)
[7] The assertion that there was once a 12,500 lb. rule at the Air-port is apparently the result of a shorthand reference in the prior variance order to City of Los Angeles Department of Airport Resolution No. 13369. (See Exhibit VNY - 1, p. 10 and p. 17))
[8] The apparent source of confusion concerning Resolution No. 13369 is a reference within a '''WHEREAS'' clause in Resolution No. 13369 to the effect that historically air taxi operations at the Airport involved Jets under 12,500 lbs. (RT: Exhibit A-3, p. 1)
[9] Not to mention that it would end the life saving, flights transferring patients and organs to 3 UCLA Medical Center for organ transplant surgeries. (RT: Vol. IX, pp. 24)