Comment from: Gerald A. Silver, President Stop the Noise!/Homeowners of Encino
Here is a copy of the Decision in the VNY Variance matter, issued by Caltrans on 5/18/2000. The order takes effect on June 19, 2000, unless appealed.
We intend to file a motion for reconsideration on a variety of grounds. As you read Judge Reyes' order, note how he has given the airport virtually everything they have asked for, and nothing to the residents. The only requirement is that VNY do soundproofing.
A word of thanks to all of the people who have helped us in this matter
Proposed decision
Jurisdictional and Procedural Findings
Background Facts Regarding the Airport
Existing Noise and Impact of Granting the Variance
Economic and Technological Feasibility
Value to the Public of the Airport
Compliance with the 1989 Variance
Helicopter Study
SENEL and Retrofit Study
Land Use Compatibility Efforts
Part 150 Study
Tenant Cooperation Efforts
Sound Insulation Program
Noise Ordinance
No Early Turn Program
Fly Friendly Program
Helicopter Routes
Non-addition Rule
Handling of Complaints
Concluding Finding
Legal Conclusions
Order
Department Of Transportation State Of California
In the Matter of the Application of: Case N OAH -L-1998040119
City Of Los Angeles Department Of Airports (Van Nuys) Applicant,
for a variance from the Department of Transportation's Noise Regulations for California Airports.
The attached Proposed Decision of the Administrative Law Judge is hereby adopted by the Department of Transportation as its Decision in the above-entitled matter.
This Decision shall become effective on June 19, 2000.
IT IS SO ORDERED this 18th day of May, 2000.
Department Of Transportation State Of California By Marlin Beckwith
Program Manager Aeronautics Program To index
Before the Department Of Transportation State Of California
In the Matter of the Noise Variance Application of
City Of Los Angeles Department Of Airports (Van Nuys) Applicant,
Applicant.
Case No. L-1998040119
This matter came regularly for hearing before Samuel D. Reyes, Administrative Law Judge, Office of Administrative Hearings, on September 13, 14, 15, 16, 17, 20, 21, 22, 23, and 27, 1999, in Van Nuys, California.
M. Lynn Mayo and Fred Slaughter Jr., Deputies City Attorney, appeared on behalf of Applicant City of Los Angeles (City).
Lance Paris represented the Class "A" Interveners.
Gerald A. Silver represented the Class "B" Interveners.
Thomas A. Ryan and Andrea K. McIntosh, Attorneys at Law, represented the Class "C" Interveners.
Larry Thelen, Attorney at law, represented Department of Transportation, Division of Aeronautics (Department).
Applicant seeks a variance pursuant to Title 21, California Code of Regulations (CCR), section 5050 et seq. in order to continue its operation of the Van Nuys Airport (Airport or VNY) at a level which generates in excess of the regulatorily-mandated level of aircraft noise, Intervenors seek to place certain conditions on the grant of any such variance. The Department raises a number of concerns regarding the noise generated by the Airport.
Oral and documentary evidence, and evidence in the form of stipulations, was received at the hearing. The record was left open for the filing of closing arguments.
Applicant's Initial Closing Brief, marked for identification as Exhibit 46, was received on January 19, 2000. Department's and Intervenors' Initial Briefs, marked for identification as Exhibits V (Department), A-16 (Class "A" Intervenors), B-256 (Class "B" Intervenors), and C-47 (Class "C" Intervenors), were received on February 22 and 24, 2000. Department and Class "B" and Class "C" Intervenors filed reply briefs, marked for identification as VI, B-257, and C-48, received on March 13 and 14, 2000. Applicant filed its Final Closing Brief on March 22, 2000, which has been marked for identification as Exhibit 47.
The matter was submitted for decision on March 22, 2000.To index
1. Applicant filed a request for a noise variance pursuant to Title 21, CCR, section 5051, on January 15, 1992 (1).
2. At the time of the application, a noise variance approved by the Department on February 21, 1989 was in effect. The variance was issued with several conditions set forth below after a hearing in February 1997 before Office of Administrative Hearings Administrative Law Judge Richard J. Lopez. The variance continues in effect during the pendency of the instant application.
3. On April 3, 1998, pursuant to Public Utilities Code sections 21669 and 21669.6 and Title 21, CCR, section 5055, following a request by State Senators Tom Hayden and Herschel Rosenthal, the Department issued a Notice of Hearing and Statement of Issues regarding City's application for a noise variance.
4. After the publication of public notices by the Department, several individuals and organizations expressed a desire to intervene in the noise
variance proceedings.
5. On August 31, 1998: Office of Administrative Hearings Administrative Law Judge H. Stuart Waxman granted motions to intervene, organizing interested individuals into three groups: Class A Intervenors (individuals, or their representatives, whose residences and/or businesses are located within the existing noise impact area); Class B Intervenors (individuals, or their representatives, whose residences and/or businesses are located outside the noise impact area but within a three-mile radius of the perimeter of the noise impact area); and Class C Intervenors (individuals, or their representatives, who are tenants or who own businesses located in the Airport).To index
6. The Airport is located approximately 20 miles northwest of downtown Los Angeles, within city limits. It is found north of the Ventura Freeway (U.S. 101) and west of the San Diego Freeway (Interstate 405).
7. Operations at the Airport began in 1927, as a private facility known as Metropolitan Airport. It thereafter became the Van Nuys Army Air Field under the control of the United States War Assets Administration. The City acquired it on February 10, 1949, after the federal government no longer needed the facility for war operations. A condition of the transfer was the property's continued use as a public airport.
8. The airport is part of the City's regional airport system that also includes Los Angeles International Airport, Ontario International Airport, and Palmdale Regional Airport. The system is operated by the Los Angeles World Airports (“LAWA”), the successor to the Department of Airports, under the direction of the policy-making Board of Airport Commissioners ("BOAC").
9. VNY is the one of the largest general aviation airports in the country. It acts as a relief for general aviation traffic in the area, primarily for Los Angeles International Airport. General aviation and unscheduled air taxi operations are its main source of traffic. Scheduled commercial air carriers do not operate at the Airport.
10. The Airport encompasses approximately 730 acres. It has two parallel north-south runways, one 8,000 feet in length (16R/34L) and one 4,000 feet in length (16L/34L). The latter is used primarily for training. Most departures are to the south. An air traffic control tower is open from 6:00 a.m. to 11:00 p.m.
11. As of 1998, 730 aircraft were based at the Airport, of which 107 were commercial jets and 50 were helicopters. Of the jets, 46 were Stage 2 and 61 were Stage 3 (2). Despite year-to-year fluctuation, the number of jets and helicopters based at VNY has not increased significantly since the prior variance went into effect. There were 93 jets in 1989 based at the Airport. Although there were 61 helicopters in 1989, a more accurate starting point is the lower 40s, as there were 43 based helicopters in 1988 and 41 in 1990.
12. There were 560,662 aircraft operations in 1998, the latest year for which figures were presented at the hearing; this number is up from 507,003 operations in 1989. The number of jet operations has increased at the average rate of 18.5 percent per year, from 8,246 in 1989 to approximately 22,000 in 1998.
13. Approximately 100 businesses are located on the airport, including six major fixed base operators ("FBOs").To index
14. Exposure to noise generated by Airport operations continues to be a problem for those living near the Airport. The noise interferes with individuals' daily activities such as talking, gardening, relaxing, and sleeping. Local residents have complained about these problems to their local political representatives and to LAWA personnel.
15. In describing the noise impact of the airport on the surrounding community in terms of the 65dB CNEL boundary, Judge Lopez made the following findings on May 26, 1988: "The incompatible land use area within the 65 CNEL is, as of the third quarter, 1986, .019 square miles consisting of 26 single family residences with a population of 79 and 151 multi-family homes with a population of 307."
16. Although fluctuating year to year, the noise impact area has grown at the average rate of 5% per year since 1989, the year the variance went into effect. The latest information available at the time of the hearing, for the third quarter of 1998 shows .09 square miles, or 57.6 acres, of incompatible land use within the noise impact area. The number of residents within the noise impact area has grown to 2,468, living in 1053 homes (140 single family and 913 multi-family dwellings).
17. In light of the pattern of growth in the noise impact area established over the past twelve years and absent a decrease in Airport operations or additional remedial measures, the impact of granting the variance will be the continuation or increase of existing noise impacts. To index
18. It is not technologically feasible during the next variance period to eliminate all noise from aircraft operations and thereby reduce the Airport's noise impact area to zero.
19. As discussed below, however, it is both economically and technologically feasible to achieve compliance with the noise standards set forth in Title 21 through the home insulation program approved by LAWA. To index
20. Judge Lopez found in his 1988 Proposed Decision, which finding was adopted by the Department, that the airport was a valuable and important resource to the Southern California economy, providing employment and other economic benefits, directly or indirectly, to five counties.
21. a. Economic impact studies commissioned by the City and prepared by Wilbur Smith Associates in 1992 and in 1999 arrived at similar results.
b. In the September 1999 study, the annual impact on the Southern California economy is found to exceed $1.2 Billion in direct and indirect benefits. Of this total, $273 Million supported 10,027 local jobs, the majority of which are found in the San Fernando Valley.
22. Class "A" and Class "B" Intervenors argue that the Airport inflicts costs on its neighbors that should be taken into account in calculating its value to the public. Two witnesses who sold or appraised property in Van Nuys in the late 1980s and early 1990s testified about the adverse impact on properties of the Airport. No evidence was presented quantifying the impact on property values of proximity to the Airport within the past five years.
23. The Airport continues to be an important center for emergency and medical air operations.
24. Closure of the Airport would have a negative impact and effect on the area's economy. To index
25. The 1989 variance contains the following conditions: (1) conduct of a helicopter noise monitoring study; 2) development of information regarding Single Event Noise Exposure Level (“SENEL”), availability of retrofit kits, and advisability of requiring such kits; (3) utilization of best efforts to attain land use compatibility planning for areas surrounding the airport; (4) compliance with all applicable laws, including an ordinance restricting air taxi operations in excess of 12,500 pounds; (5) undertaking a study pursuant to Part 150 of the Federal Aviation Regulations; (6) continued submission of reports to the Department and availability of such reports to members of the public; (7) continuation of efforts to secure tenant cooperation in noise abatement measures; (8) expiration of variance absent good faith efforts to complete the Part 150 Study subject of condition number (5); (9) provision of information in connection with subsequent variance applications; and (10) three-year variance term. To index
26. Consultants hired by LAWA, Acoustical Analysis Associates, Inc., completed the study required by the 1989 Variance in March 1990. They obtained measurements of helicopter and other noise at eight different sites inside a two-square-mile perimeter of the Airport for five to nine 24-hour periods between November 23, 1989, and January 18, 1990.
27. The study revealed that despite some higher single event measurements for helicopters, the average CNEL values for helicopters ranged between 44.6 to 54.5 dB at the monitoring sites. Aircraft average CNEL values were generally higher, ranging between 47.4 to 57.4 dB. The consultants concluded that noise generated by helicopter operations did not appear to be approaching regulated levels. To index
28. Acoustical Analysis Associates, Inc., completed the study required by Condition number 2 in March 1990. The consultants reported the requisite noise event data. They concluded that retrofit kits were not available for some of the aircraft based at the Airport and cited costs involved in requiring retrofitting. To index
29. Land use planning involving the area in and around VNY is still work in progress.
30. The first effort was the 1974 land use plan approved by the City Council as an element the City's General Plan, the Reseda Van Nuys community plan. The VNY element contained the following policies: “[I]n the further development of the Van Nuys Airport every effort should be made to make the airport and the surrounding communities mutually compatible and “[a]reas adjacent to VNY should be encouraged to develop with land uses compatible with uses compatible with the airport.”
31. Zoning modifications were made to the VNY element in 1988 pursuant to a State mandate.
32. The process of updating the 1974 airport plan, now called the VNY Master Plan, commenced in 1992. After years of study and discussions with interested parties, a draft recommendation was completed in 1997.
33. Additional study and community input took place during 1997 and 1998.
34. The latest draft was completed in November 1998. At the time of the hearing, the document was being shown to affected Council members and the FAA, the latter for a determination that sufficient land has been set aside for aviation uses. This draft does not contain land use policy intended to address the reduction of the noise impact area.
35. LAWA has participated in the foregoing process. However, given the multitude of interests involved and the extended nature of the process, it is difficult to determine if it has used its best efforts to petition City officials to revise the general plan to bring about land compatibility within the noise impact area.
Compliance with Noise Laws and Submission of Reports
36. LAWA continues to comply with the regulations requiring noise measurement and reporting. It installed new monitors and hardware in 1989. It regularly calibrates the noise monitors and submits quarterly reports as required by law.
37. It added new software in 1994, which it upgraded in 1998 and 1999. The software improvements have enhanced the system's database and its ability to juxtapose information regarding noise events and aircraft operations.
38. Intervenor groups "A" and "B" argue
that City has failed to implement Resolution No. 13369. The Resolution, adopted
by BOAC on October 27, 1982, provides, in pertinent part, as follows:
WHEREAS, unscheduled air taxi
operations are defined as random, infrequent, on-call for hire operations,
having no predetermined or set schedule, which utilize aircraft not exceeding
12,500 pounds maximum gross landing weight; and
WHEREAS, unscheduled air taxi
operations have been permitted at Van Nuys Airport for a long number of years,
provided such operations use aircraft weighing 12,500 pounds or less;
NOW, THEREFORE, BE IT RESOLVED that the Board of Airport Commissioners
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 specifically prohibited the operation of other scheduled and
unscheduled air carrier commercial flights to and from Van Nuys Airport except
with the express consent of the Board."
39. Although the record does not establish the weight of the aircraft utilizing the
Airport in 1982, were the prohibition against aircraft weighing 12,500
pounds or more enforced at present, most if not all of Airport-based jets would
exceed this weight limitation.
40. City has not enforced the 12,500-pound weight limit contained in Resolution
No. 13369.
41.
In its post-hearing brief, City argues that the policy contained
in the resolution is not legally enforceable because it was never enacted as an
ordinance.
42.
Intervenor group "C" argues that the resolution
simply reaffirmed BOAC policy not to allow air carrier service absent its
express consent, which consent has not been given. City joins in this argument. To
index
43. LAWA commenced the part 150 study process in the late
1980s.
44. BOAC approved the study on October 5, 1992 (Resolution Number
18204) and thereafter submitted it to the FAA for its approval.
45. On October 5, 1993, the FAA declined to approve the
recommendations of the Study. It failed to address the merits of the
underlying proposals because of a disagreement with the City's airport growth
forecast. Howard S. Yoshioka, Supervisor, Planning Section, wrote that
"additional information will be required to make a determination of the
[Noise Exposure Map]s pursuant to Federal Aviation Regulation (FAR) Part
150." (4) He noted that the submitted projection of a 100% increase in
turbojet operations was a worst case scenario and was not supported by the data.
46. The City did not resubmit the Study with a lower growth
projection.
47. Despite this failure to submit the Part 150 Study, LAWA
implemented some of the study's recommendations, the most significant of which
are set forth in this Decision.
48. LAWA attempted to re-start the Part 150 process in the latter
part of 1996. It appointed members to a new or "reconstituted"
steering committee and held one or two meetings of said committee. To
index
49. As set forth below, LAWA has formally instituted two
programs, "Fly Friendly" and "No Early Turn", to seek its
tenants' voluntary cooperation in noise mitigation and abatement efforts.
50. In order to seek tenant cooperation and compliance, LAWA
regularly distributes brochures and other documents regarding its noise
abatement and mitigation policies and programs. It holds quarterly meetings with
tenants at which policies and procedures are discussed; the first of these
meetings was held July 1999. To
index
51.
In Spring 1999, LAWA adopted an Aircraft Noise Mitigation Program (ANMP) to
comply with the requirement in Title 21, CCR, section 5050, for airport
proprietors with a noise impact area to plan for the reduction of the noise
impact area over a reasonable period of time. Compliance is anticipated through
completion of a Sound Insulation Program.
52. LAWA patterned the home insulation program after the one
it has implemented in Los Angeles. It estimates that it would cost between
$10,751,200 (if only 80 percent of eligible residents participate) and
$13,439,000 (if all participate) to soundproof the 1053 residential units (140
single-family dwellings and 913 multi-family ones) in the noise impact area in
accordance with FAA requirements.
53. The yearly funding for the Program is projected to be $3
Million. At this rate, absent cost increases or other complications, all homes
would be insulated in 3.58 years (assuming 80% participation) or in 4.48 years
(assuming 100% participation)
54. LAWA plans to fund the program with its own resources,
although it may seek FAA reimbursement. It has already approved the expenditure
of $3 Million for the first year of the Program.
55. At the time of the hearing, LAWA had commenced preliminary
implementation of the Program. It presented the Program to the Airport Advisory
Committee in early September 1999. It leased office space in the Airport area.
It assigned administrative staff to the Program. It began hiring additional
staff. To
index
56. Ordinance number 155727, approved August
18, 1981 prohibits repetitive operations (referred to as "touch
and go") between the hours of 11:00 p.m. and 7:00 a.m. and engine tests or
"run-ups" between 7:00 p.m. and 7:00 a.m. or outside designated areas.
It also encourages exclusive use of the 8,000-foot runway for landings and
departures between 11:00 p.m. and 7:00 a.m.
57. a. The Ordinance also prohibits
aircraft from landing or taking off between the hours of 11:00 p.m. and 7:00
a.m. It provides exceptions for aircraft that can depart without exceeding 74 dB
and for emergency, government and military operations.
b. It was amended on December 19, 1997 (Ordinance
171889), to start the curfew one hour earlier, at 10:00 p.m.
58. Civil penalties, airport use restrictions, and
judicial remedies may be used to obtain compliance with the ordinance. To
index
59. The No Early Turn Program was started in 1996 or
1997. LAWA seeks to obtain operators' voluntary cooperation in following a
certain flight path believed to be less intrusive in terms of noise. It
asks that pilots fly over a golf course south of the airport as planes gain
altitude before turning eastward, at the Sepulveda Flood Basin south of Victory
Boulevard (a major east-west thoroughfare). This take-off maneuver is intended
to concentrate a greater portion of the noise at take-off over non-populated
areas.
60. Owners of noncomplying aircraft are sent a letter with details of the early
turn and asking for an explanation of the early turn. To
index
61. The City started the Fly Friendly Program in mid-1994.
It is another voluntary program in which LAWA encourages operators to abide by
departure procedures designed to reduce noise on take off.
62. LAWA issues "fly friendly" letters notifying
owners of planes deviating from the criteria and urging them to comply. It
issues approximately 100 per month, an unspecified number to repeat violators.
63. LAWA attributes a slight diminution of noise in 1996 and
in 1997 to the implementation of the program. To
index
64. There are six designated helicopter routes in and out of
VNY. Helicopters must cruise above 500 feet, ascending and descending within the
Airport's boundary.
65. VNY sends letters to operators who fail to follow the
routes or who fly too low, reminding them of the rules and requesting an
explanation for the deviation. To
index
66. On July 28, 1999, BOAC approved resolution number 20736
limiting an operator's ability to replace Stage 2 aircraft. This resolution
requires City Council approval. At the time the hearing concluded such approval
had not been given. To
index
67. VNY has a designated line (an "800" number) for
the receipt of noise complaints from local residents. All calls and facsimiles
are answered electronically and a record of each contact is made. Complaints
received by phone or in writing are logged.
68. LAWA utilizes a policy it refers to as "one call, one
complaint." If multiple complaints are logged during one call or on
one written communication, they are treated as a single complaint. Its policy is
to investigate all complaints, as limited by its "one call, one
complaint" policy. Starting the early part of 1999, LAWA provides written
responses to the complaining individual or entity. To
index
69. a. One of the proposals offered by
Intervenor groups "A" and "B" is the placement of equipment,
dubbed "hush kits" and described as airplane mufflers, intended to
reduce the noise emitted by stage 2 aircraft.
b. At the time of the hearing, no such equipment
had received FAA certification.
c. A witness called by Intervenor group
"B", Dexter Cox, of Stage III Technologies, anticipates producing
approximately 60 units this year after obtaining final FAA certification. He
expects the cost of each unit to an operator at 1.5 Million, installed.
70. Intervenor groups "A" and "B"
seek the elimination of and/or a ban on additional Stage 2 aircraft
(non-addition rule).
71. a. Intervenor group
"C" presented evidence showing that the foregoing measures carry a price for the community.
b. Consultant John Kennedy, who has previously
undertaken projects for LAWA, conducted a study to estimate the cost over a
three-year period based on the existing fleet and operations of the three major
proposals propounded by Intervenor groups "A" and "B." He
concluded that if all Stage 2 jets were phased out, it would cost $525,165,000
to replace them with Stage 3 aircraft; if operators refused to replace them,
then the cost in lost salaries and services was estimated at $45,455,500 and 332
jobs.
c. Kennedy opined that if operators were not
permitted to add Stage 2 craft to their fleets, then the cost to use Stage 3
jets would be $361,200,000. The cost of not adding Stage 3 craft and the
resulting job losses of such decision would be $29,268,900 and 2l0,
respectively.
d. According to Kennedy, requiring hush kits for Stage 2
jets would cost $83,040,000. He estimates the cost to the community of
noncompliance at $45,455,500 and 332 jobs. To
index
72. Except as set forth in this Decision, all other
allegations in the Statement of Issues, and all other contentions by the parties
at the hearing, are found to constitute surplusage or to lack merit. To
index
In granting variances, the Department must be guided by the underlying policy
that the proprietor of each existing airport having a noise impact area (i.e.,
incompatible land uses within the 65dB CNEL contour) is required to develop and
implement programs to reduce the noise impact area of the airport to an
acceptable degree in an orderly manner over a reasonable period of time. Title
21, CCR, section 5050.
A municipal proprietor, such as City, has a number of options to reduce or
eliminate the size of the noise impact area, including those listed in Title 21,
CCR, section 5037. For instance, it may encourage use of less noise aircraft or
departure flight paths and procedures to minimize noise in residential areas. It
may also convert incompatible land uses to compatible ones through rezoning,
acquisition of avigation easements for noise (voluntarily in exchange for
acoustical insulation, an agreed fee, or by eminent domain), application of
acoustical insulation, or acquisition of property.
The Department may grant a variance if to do so would be in the public interest.
In making this determination, the Department must consider the following: (a)
the economic and technological feasibility of complying with the noise standards
set by the 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, CCR, section 5053.
However, the actions that an airport proprietor may undertake, and to a greater
extent those that a state or local regulatory agency may mandate, are
circumscribed by federal law and policy. Burbank v. Lockheed Air Terminal,
Inc., 411 U.S. 624 (1973); National Helicopter Corp. v. City of New York, 137
F.3d 81 (2nd Cir. 1998); Burbank-Glendale-Pasadena Airport Authority v. City of
Los Angeles, 979 F.2d 1338 (9th Cir. 1992); San Unified Port District v.
Gianturco, 651 F.2d 1306 (9th Cir. 1981); Air Transport Association of America
v. Crotti, 389 F.Supp. 58 (N.D.Cal. 1975).
The Department may not impose conditions than directly affect aircraft or flight
operations. San Diego Unified District v. Gianturco, supra, at 1314; Air
Transport Association v. Crotti, supra at 65: City of Burbank v.
Burbank-Glendale-Pasadena Airport Authority. 72 Cal App.4th 366, 379 (1999). On
the other hand, government land use restrictions and other mitigation measures
without such direct impact have been upheld by the courts. See: San Diego
Unified Port District v. Gianturco, supra at 1314 ("local governments
may adopt abatement plans that do not impinge on aircraft operations"); Air
Transport Association of America v. Crotti, supra (Title 4, CCR, section 5037's
predecessor not invalid on its face); City of Burbank v.
Burbank-Glendale-Pasadena Airport Authority, supra (state requirement for city
approval of airport expansion plans not preempted by federal law).
Accordingly, determination of whether a noise variance is appropriate and if so
whether conditions are necessary requires the balancing of the factors set forth
in Title 21, CCR, section 5053, while keeping the limitations placed by federal
law and policy in mind.
Thus, on the one hand, the Airport is very valuable to Southern California and
to the San Fernando Valley. On the other hand, the noise impact is
significant and the noise impact area is not likely to disappear absent
additional measures.
One such measure is the newly approved sound insulation program. By the
application of acoustical insulation, incompatible residential land use is
converted into compatible land use in accordance with Title 21, CCR, section
5037(f). If projections prove correct, the noise impact area will be eliminated
in approximately 4 to 5 years. This program shows that it is economically and
technologically feasible to reduce the noise impact area to zero in the next 4
to 5 years.
Despite the delay in the development of some measures and the shortcomings in
the implementation of others discussed in this Decision, the sound insulation
program and LAWA's overall efforts to reduce or mitigate noise establish that it
is taking good faith measures to meet the noise standards.
On balance, granting the
variance is in the public interest, provided that reasonable conditions are
attach pursuant to Title 21, CCR, section 5054. The conditions are designed to
ensure compliance with the state noise standards and to monitor the Airport's
progress with respect to the home insulation program. Except as set forth in the
Order below, other conditions sought by Intervenor groups "A" and
"B" are unwarranted.
Some specific conditions sought by Intervenor groups "A" and
"B" are beyond the power of the Department to order because they
directly affect aircraft or flight operations. These include a curfew of
helicopter operations, the phase out of Stage 2 aircraft, a prohibition against
additional stage 2 aircraft, the requirement of hush kits on Stage 2 aircraft,
and the enforcement of the 12,500-pound limitation.
Courts have invalidated specific local regulations directly affecting aircraft
or flight operations on federal preemption grounds. See e.g.; Burbank v.
Lockheed Air Terminal, Inc., supra (city curfew ordinance); Burbank-Glendale-
Pasadena Airport Authority v. City of Los Angeles, supra (city ordinance
requiring prior submission and approval of any plans for development on a parcel
of airport land used exclusively for aircraft landing and takeoff); San Diego
Unified Port District v. Gianturco, supra (state variance condition imposing
aircraft curfew); Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d
Cir.1956) (ordinance prohibiting air flights at less than 1,000 feet when
passing over the village); American Airlines, Inc. v. Town of Hempstead, 272
F.Supp 226 (E.D.N.Y. 1966) (ordinance forbidding anyone from operating airplanes
that create noise above a certain level); County of Cook v. Priester, 22
Ill.App.3d 964 (1974) (county ordinance excluding aircraft above a certain
weight).
Citing National Helicopter Corp. v. City of New York, supra, Intervenor groups
"A" and "B" argue that as a governmental airport proprietor
City may enact the noise abatement measures they seek. In that case, the Court
upheld weekday and weekend curfews, elimination of weekend operations, reduction
of operations by 47 percent. See also: Santa Monica Airport Association v.
City of Santa Monica, 481 F.Supp 927 (C.D.Cal.) 1979), aff'd 659 F.2d 100 (9th
Cir. 1981) (municipal airport proprietor able to impose through an ordinance a
night curfew, a helicopter flight training ban, a weekend and holiday ban on
certain operations (touch-and-go, stop-and-go, and low approach), and noise
level limitations based on SENEL measurements).
These cases involve the "proprietor exception" to federal preemption.
In these cases a governmental proprietor has voluntarily undertaken noise
abatement or mitigation measures subsequently upheld by the Courts. These
cases, however, are distinguishable. Inasmuch as continuation of VNY-initiated
measures is not at issue, these cases do not help Intervenor groups
"A" and "B." (5)
For the foregoing reasons, granting a properly
conditioned variance is in the public interest. To
index
LAWA's application for a variance from the airport noise
standard is granted subject to the following conditions:
1. The variance shall be effective for a period of three
years.
2. LAWA shall comply with all laws and regulations of
the United States, the State of California, and the political subdivisions of
the State, governing noise abatement and mitigation.
3. LAWA shall continue to submit to the Department
and the County of Los Angeles quarterly reports, which reports shall contain
details regarding noise monitoring efforts, the size of the noise impact
boundary, the annual CNEL at each monitoring station, and efforts and activities
undertaken to comply with the terms and conditions of this Order and Title 21,
CCR, section 5000 et seq.
4. LAWA shall file a yearly report with the
Department containing details of the progress of its Sound Insulation Program,
including the activities undertaken to implement the program, the number of
dwellings acoustically-insulated, the cost of the program, the anticipated
progress in the upcoming year, and the anticipated completion date of the
project.
5. Upon request, LAWA shall make the reports
described in condition numbers 3 and 4 available to the public at a charge no
greater than the cost of reproduction.
6. LAWA shall continue its programs to monitor
noise events and to catalog and respond to noise complaints by area residents.
7. LAWA shall continue its programs to inform
Airport tenants about its noise abatement and mitigation policies and to seek
their cooperation in these efforts.
8. Upon application for a subsequent variance,
LAWA shall submit as part of the application a summary of its efforts during the
variance period to comply with the foregoing conditions.
9. In the event LAWA fails to comply with the
terms and conditions of the variance, such conduct shall constitute grounds for
termination or for further conditioning of the variance.
DATED: 4/19/00
SAMUEL D. REYES Administrative Law Judge Office of Administrative Hearings To
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(1) The regulations require a noise
variance before an airport with a "noise impact area" can operate.
Title 21, CCR, section 5012. The noise impact area is defined in terms of a
community noise equivalent level ("CNEL") of 65 decibels
("dB"). Ibid. The CNEL is derived from the average of all noise events
over a twenty-four hour period, where greater weight is given to noise made
during evening and early morning hours. Section 5001(f). If points around an
airport where the 65 dB CNEL level is achieved on an annualized basis are
joined, the resulting outline is the "noise impact boundary," Section
5001(1). The 'noise impact area'' is the area within the noise impact
boundary that is composed of incompatible land uses. Section 5001(k).
Incompatible land uses, in turn, are defined as residences, schools, hospitals
and convalescent homes, churches, synagogues, temples, and other places of
worship, which the airport proprietor does not own or have an avigation easement
over and which do not contain noise insulation or acceptable interior noise
levels as defined in the regulations. Section 5014. (2) These refer to Federal Aviation
Administration (FAA) classifications where Stage 3 aircraft represent newer,
quieter jets. See Title 14, Code of Federal Regulations (“CFR”), Part 36. (3) “Part 150" refers to Part
150 of Title 14 of the CFR entitled "Airport Noise Compatibility
Planning," which implements portions of the Aviation Safety and Noise
Abatement Act of 1979. (5) In light of the conclusions that
City is taking good faith measures to attain the state noise standard and that
such standard is both economically and technologically feasible within the next
4 to 5 years, it is unnecessary to determine whether failure to pursue measures
available to it as proprietor under recognized exceptions constitutes evidence
that City is not using its best efforts to meet the sate regulatory standard. To
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Part 150 Study (3)
Tenant Cooperation Efforts
Other Measures by LAWA to Meet the Noise Standard
Sound Insulation Program
Noise Ordinance
No Early Turn Program
Fly Friendly Program
Helicopter Routes
Non-addition Rule
Handling of Complaints
Proposals Suggested by Intervenor Groups
"A" and "B"
Concluding Finding
Legal Conclusions
Order
FOOTNOTES: