Brelend C. Gowan Chief Counsel (Acting)/Deputy Chief Counsel
Ronald 1. Harrison, Assistant Chief Counsel
Larry Thelen (Bar No. 039437) Raiyn Bain, John Hoxee
Attorneys for Department of Transportation
1120 N Street (MS 57), P. 0. Box 1438 Sacramento, California 95812-1438
Telephone: (916) 654-2630 Facsimile: (916) 654-6128
Attorneys for Department of Transportation State of California
For a Variance from the Department's Noise Regulations for California Airports
Although this court has afforded this Department the opportunity to comment on the respondent airport's opening brief in advance of any responses from intervenors, we believe that it would be inappropriate to address the substance or credibility of the evidence until all parties have filed their arguments. We do believe, however, that it is entirely appropriate for comment to be made on frames of reference and procedural matters. Regarding these, we have the following points.
Preliminarily, the court and all parties are reminded that this proceeding does not address the general matter of the extent to which noise may be an annoyance, or even a nuisance, to the intervenors. As the respondent reminds, the test is instead the objective one of determining the noise impact area according to the formula in regulation and then ensuring that the airport is making reasonable progress toward mitigating the effects of aircraft noise on those adversely impacted within that area.
Turning to frame of reference, the essential facts reported by respondent are:
1. That the Van Nuys Airport consists of 730 acres (p. 1, 1. 24);
2. That the noise impact area is 57.6 acres (p.2,1.19) and affects 1,053 dwellings, which is estimated to include 2,468 individuals. (p.2,11. 22,23); and
3. That since the last variance was granted in 1989, the noise impact area has increased 5 percent yearly (p.2, 1. 24) for a total increase of 45 percent (p.3, 1. 20), but that this resulted in large part from the fact that private jet operations increased 18.5 percent per year, or 166.5 percent for the period (p.3, 11.1,2).
This significant increase in jet aircraft operations demonstrates that there can be increases in Jet operations without proportionate increases in the noise impact area. It also, however, demonstrates the need for noise monitoring to be continuous. Where levels of operations are changing constantly and perhaps unpredictably, it is all the more imperative that noise contours be kept current.
The respondent introduced into evidence its Aircraft Noise Mitigation Program ANMP) (exhibit 43), and the adoption of it by the Board of Airport Commissioners on august 26, 1999 (exhibit 3 1). That document constitutes a commitment by the Airport Board to insulate all impacted residences within three to five years. This is entirely commendable. however. the ANMP treats properties zoned for uses that are different from those in the City's general plan as not eligible for mitigation. Compliance with the intent of the airport noise law requires that all property be, in the end, zoned consistent with the general plan, and that in the interim, noise mitigation be extended to every residence, regardless of its land use status. Should ie City determine it not worthwhile to invest insulation in nonconforming use residences, it is at I times free either to acquire an avigation easement over (or the entire) property, or to convert it to compatible use.
The respondent lists all of the conditions of the present variance and demonstrates he manner in which it has complied with them. Respondent then reports some nine other ongoing mitigation efforts. Several are not mandates, but instead, requests of aircraft operators or studies. These are, of course, only valuable either to the extent operators are willing to cooperate or as precursors to action. Among those efforts are at least one, if not several, that are under current court decisions beyond the authority of a state to mandate. The most obvious of these is a noise curfew (p.5, 11. 24-25). The respondent points out in its favor that many of these actions are beyond the "operative variance" (p.6,11. 6,7). Its point is well taken.
Still, the State's noise regulations are not aimed at specific actions that might be taken; they are aimed at end results. It does not matter how an airport achieves a zero-impact area, so long as it is achieved. It does not matter whether the specific actions employed by the airport are subject to mandate by the State or instead preempted by federal law, so Iong as the end result is a zero-impact area. Orange County's John Wayne Airport is a case in point. It achieves a zero impact area in large measure by using to special take-off procedures that are concededly beyond the authority of the State to require.
It might be well at this point to also make a further point about the noise impact area. Respondent seems to contradict itself in that it first asserts that it will be impossible to achieve a noise-impact area of zero and then reports that it will, in fact, achieve such goal by insulating all impacted residences and other structures within five years. Respondent appears to be confusing the area subject to excessive noise levels with the fact that the very definition of the term "noise impact area" includes the existence of uses within the contour that are incompatible with the airport. No uninsulated incompatible structures, no noise impact area. This Department then encourages the respondent to continue consideration of all feasible abatement measures, such as curfews, weight limitations and hush-kit limitations, and the implementation of such of those measures as may be optimal, and urges this court to give due consideration to such efforts.
Respondent reminds the court that in order to issue the variance, consideration must be given to economic and technological feasibility of achieving a zero-impact area to the interest, and to the extent to which it is taking good faith measures to the best of its ability to achieve a zero-impact area.
Regarding economic and technological feasibility, the respondent focuses on the elimination of Stage II aircraft and hush kits. It cites testimony that these would be far too expensive (p.5,11. 26,27; p.6 1.1, p.7). It urges that such operational constraints would be legally unsound and would not result in the elimination of noise impact area in any event (p.8,11. 22,27). Were elimination of Stage 11 aircraft the only way, this point would be telling. However, respondent has already demonstrated that a zero-noise impact area is both technologically and economically feasible by its ANMP, which will eliminate the noise impact area within three to five years at a cost of $10,751,000.00 without resort to such regulation (p.9, 11.1,2).
Regarding public interest, respondent addresses the adverse effects that too harsh a set of conditions might have on police and emergency services, media users, business travelers and business jets (p. 10, 11. 1,4). It cites the loss of jobs and revenues as well, should Stage 11 aircraft be eliminated or hush kits required (p.6,11. 4, 5) and the loss of service that might result if operators relocate (p.7,11. 22, 23, p.8,11.19-20). Respondent acknowledges that the amount of revenues which are directly or indirectly related to the airport operation total about $787 million. The aviation and non-aviation related impacts for the airport total over $1.2 billion dollars for 1998 alone, with about $273 million paid in salaries to 10,027 jobs (p. 10, 11. 6-17). While referring to jobs cost estimates for Stage II conversions, respondent does not address, on the other hand, how much aircraft owners might be willing to invest in quieter engines to ensure continued access to this most favored site. Also, all involved are reminded that these services, revenues and jobs are made possible only at the corollary price of excessive noise to nearby residents.
Regarding the extent to which the respondent's efforts are in good faith to
the best of its ability, the ANMP commitment can hardly be overlooked. But nor
can it be overlooked that the ANMP was not adopted until just before this
hearing and that it will continue to be efficacious only if updated often.
Respondent's brief does not volunteer that any specific conditions should be
imposed by the variance. Considering the firm commitment that respondent has
made to total alleviation of the existing noise-impact area, a conditionless
variance is certainly deserving, of consideration. On the other hand, the
evidence suggests that, in addition to such other conditions as the court may
believe necessary, the following conditions might be warranted:
1. The term of this variance should be for three years from its effective date.
2. The variance should be subject to termination, however, if the respondent discontinues:
a) its Noise Abatement Rules (or substantially reduces elements thereof) such that the noise impact area as shown in its quarterly report is shown to have increased as a result.
b) implementation of its ANMP, or neglects to update it annually on a schedule that will facilitate the use of latest available information regarding the acoustic treatment or other land use conversion methods employed. The annual update should provide the current status of compliance with the requirement for land use compatibility, regardless of inconsistencies between general plans and zoning-, plans, within the noise-impact boundary. Each annual update should also provide an updated prediction of the date for achieving a noise-impact area of zero.
4. Respondent (which is, after all, the City of Los Angeles) should be enjoined to coordinate with its own city planners, and with county planners acting as staff to that county ' s airport land use commission, efforts to achieve the adoption of land uses that are compatible with the airport.
5. During the term of this variance, respondent should, each quarter, be required to submit reports of noise monitoring to the Department and to the County of Los Angeles in accordance with the schedule in the Noise Standards. Among other things, the reports should include the current noise impact boundary, the annual CNEL at each monitoring station, and the efforts and activities respondent has undertaken to comply with the conditions set forth in this order. Respondent should be required to make such reports available to any member of the public at a charge no greater than the cost of reproducing them.
6. In the event respondent violates any of the conditions contained in this
order, or should respondent violate any other laws or regulations of the State
of California pertaining to airport noise, such conduct should constitute a
cause for termination or further conditioning of the variance granted herein.
Nothing in these statements should be taken as an indication that this
Department as formed any conclusions on the matters before this court in advance
of the submittals of intervenors. They are intended instead to document
preliminary views on these matters so as to or the respondent and intervenors an
opportunity to address them. This Department will not refer these questions to
the appropriate departmental official and arrive at a set of conclusions until
guided by the final decision of this court.
Dated: February 18, 2000 Respectfully submitted,
Brelend C. Gowan Chief Counsel (Acting)/Deputy Chief Counsel Ronald 1.
Harrison, Assistant Chief Counsel Larry Thelen, Raiyn Bain, John Hoxee
By Larry Telen