Class "B" Intervenors
GERALD A. SILVER, Class Representative
HOMEOWNERS OF ENCINO
(dba Stop the Noise!)
P. O. BOX 260205
ENCINO, CA 91426-0205
In Pro Per for Intervenors
Before the Department Of Transportation State Of California In the Matter of the Application of: Case No: OAH -L-1998040119
The Class "B" Intervenors respectfully submit the following memorandum in support of Intervenor "B"'s Motion for Reconsideration of Caltrans Order Adopting Proposed Decision; Motion for a Correction of a Mistake in Decision.
After a lengthy hearing in which a substantial amount of testimony and evidence
was received on an application for a Variance for Van Nuys Airport (VNY), pursuant to Title 21, California Code of Regulations, section 5050 et seq., a Proposed Decision was issued by Administrative Law Judge Samuel D. Reyes on April 19, 2000. The Proposed Decision granted Respondent Los Angeles World Airways (Airport/LAWA) a three-year variance to continue its operation at a level which generates in excess of the regulatory-mandated level of aircraft noise.
On May 18, 2000, Caltrans issued an order, adopting the Administrative Law Judge's (ALJ) Proposed Decision as its Decision in the above-entitled matter. The Order granted the Airport a three-year variance with only inconsequential requirements including the submission of annual reports on the progress of its soundproofing program. The Caltrans Decision becomes effective on June 19, 2000. This action of adopting the Decision was done without submitting the Proposed Order to Intervenor "B" for review or comment.
Extensive testimony and evidence were offered by Intervenor "B" in opposition to granting Respondent a variance, unless substantial conditions were affixed to the order to protect the community against excessive noise and harm to the quality of life of residents living within the 65 CNEL noise impacted area.
In judging whether an Airport meets the California Code of Regulations for a variance, the Court shall consider four major criteria: (Title 21, CCR, Section 5053)
(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.
The Respondent did not meet the four criteria, established by the California Code of Regulations, and remains out of compliance because it operates the Airport with 1052 dwellings, 2468 residents and 57.6 acres located within the 65 CNEL contour. The Court should not have granted a variance without express conditions that would lead toward a reduction in the noise level generated by VNY.
Further, the Court applied strict rules of evidence to the administrative hearing and this has resulted in undue prejudice to Intervenor "B"'s case. As a result of this variance proceeding, the community around the Airport is left with the prospect of more noise and without any protection or promise of any future noise reduction.
The Court made a number of mistakes and clerical errors in its Factual Findings. The Court's legal analysis was fatally also flawed and this bears directly on the outcome of this case, and is materially prejudicial to the interests of Intervenor "B". For these and the other reasons described below, it is essential that Caltrans reconsider its Decision adopted on May 18, 2000, correct the mistakes and clerical errors in the Decision, and append additional conditions on the variance as outlined in Intervenor "B"'s Initial Closing Brief, or in the alternative, vacate and set aside its Decision of May 18, 2000.
Caltrans has traditionally sought to employ an Administrative Law Judge to hear its regulatory cases. Once the Administrative Law Judge has submitted his or her findings, usually in the form of a Proposed Order, it is then submitted by Caltrans to the parties for comment and evaluation, and then a Decision is rendered by Caltrans. This process serves the public well and is in line with the intent of the legislature in establishing an effective administrative process. The essence of the process is to separate Caltrans from the fact-finding process, allowing an Administrative Law Judge to hear the case, determine the issues and facts, and finally render a Proposed Order. Once this is done, Caltrans then evaluates the law and facts and renders a Decision.
Caltrans hires the Administrative Law Judge and set him or her on a fact finding course. Implicit in the process is the independence of the Court and maintenance of the integrity of the fact-finding process. The entire process is compromised if Caltrans becomes an advocate, prior to the Administrative Law Judge rendering an opinion. For Caltrans to intervene, prior to the Administrative Law Judge issuing a ruling serves only to prejudice the process. It places Caltans in the position of judge, jury and executioner-far from the administrative procedures established by the Legislature.
Unfortunately in the above-entitled matter, Caltrans played a major role as an advocate and unduly prejudiced the administrative process, causing great harm and injury to Intervenor "B".
During the hearing process, Caltrans submitted two briefs. The first, Department of Transportation Closing Brief, filed February 18, 2000 was neutral in tone, and consisted essentially of a recitation of some facts placed into evidence and issues to be resolved. In its brief Caltrans included a number of conditions that "might be warranted". (Caltrans Closing Brief 5:6 to 6:6.) Of particular note is the statement in their brief, specifically qualifying Caltrans intent not to "form any conclusions" until the appropriate time. Caltrans stated:
"Nothing in these statements should be taken as an indication that this Department has 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 afford the respondent and intervenors an opportunity to address them" (Caltrans Closing Brief 6:7 to 6:12)
On March 10, 2000, Caltrans submitted its second brief, Department of Transportation Closing Brief Responding to Closing Arguments of Intervenors. Only this time, Caltrans' brief deviated from its earlier neutral position, and the Department then became an adversarial advocate.
Before the Administrative Law Judge had issued his Proposed Order, Caltrans "poisoned the well" by submitting its closing brief that took a partisan and unduly prejudicial advocacy position against the interests of Intervenor "B". Caltrans opened its brief with the statement:
"The subject brief states at the outset that it is taking no positions; it is instead only attempting to help frame references and note questions for the court's consideration." (Department of Transportation Closing Brief Responding to Closing Arguments of Intervenors 1:23)
Caltrans then proceeded to issue judgments, make determinations and denounce conditions recommended by Intervenor "B". Under the guise of objective comment, Caltrans offered unduly prejudicial, one sided conclusions in its closing brief. (Department of Transportation Closing Brief Responding to Closing Arguments of Intervenors 7:12 to 8:16)
The effect of this interference with process was to place before the Judge a set of minimal variance conditions before he had an opportunity to make an independent investigation of the facts and make a determination. The Proposed Decision prepared by the Court was therefore little more than a "cookie cutter" copy of the Caltrans recommendations.
If Caltrans is permitted to prepare and offer conditions which are simply copied by the Administrative Law Judge, then there is no need for a trial, submission of evidence, testimony, examination of witnesses and the like. The undue influence of Caltrans in the administrative process raises serious questions about integrity and validity of the Decision issued by Caltrans on May 18, 2000. These facts justify a reconsideration of the matter by Caltrans, and the issuance of a new Decision, based upon the evidence placed before the judge.
The Court erred in its Proposed Order by making a number of incorrect Factual Findings. The following mistakes, clerical errors must be corrected:
(1) There is a noise ordinance in effect at Van Nuys Airport that regulates night-time landing and takeoff procedures. (Exhibit, LAWA 16). This ordinance states that only night departures of aircraft making over 74 dB are prohibited. The ordinance does not prohibit landings of any aircraft based upon noise levels between the hours of 10:00 p.m. and 7 a.m. By failing to correctly interpret this noise ordinance, the Court was unable to consider the severe noise impacts of unlimited night-time landings of both Stage 2 and Stage 3 jets, as well as helicopters. (Proposed Decision, page 10, item 57.)
Based upon this lack of recognition of noisy landings during night-time hours, Caltrans must reconsider its Decision, and therefore place additional conditions on the variance that would address the night-time noise problem.
(2) The Court erred by failing to recognize that hush kits are in fact available for many models of Stage 2 jet aircraft operating in and out of the Airport. Intervenor "B" offered a condition that where possible, Stage 2 jets operating out of the Airport be equipped with "hush kits" to reduce noise emitted by aircraft operating from the Airport.
Factual Finding 69 b, page 12 of the Proposed Order, was in error when the Court stated:
"At the time of the hearing, no such equipment had received FAA certification"
The testimony presented at the trial by Mr. Cox and Mr. Lacy clearly established that hush-kits are available for many models of Stage 2 jets operating out of the Airport, including Lear 24's and 25's. (TR. IX 74:20)
The failure to recognize this fact is a substantial error and a justification for Caltrans to reconsider its Decision, and therefore place additional conditions on the Airport, including a program to require hush kits where available.
(3) The Court erred in its Factual Finding No. 10, page 3. The Airport is configured with two parallel runways, marked 16R/34L and 16L/34R. The Court's Proposed Order incorrectly described these runways as:16R/34L and 16L/34L. This incorrect interpretation of the runway configuration may have led to the incorrect Factual Finding No. 27 where the Court concluded that "noise generated by helicopter operations did not appear to be approaching regulated levels".
Helicopter noise off of 16R/34L and 16L/34R, especially the Basin South route, is a major source of noise complaints from residents. This noise problem was never adequately addressed by the Court in its Proposed Decision. Under a reconsideration, Caltrans should remedy this problem.
(4) The Court erred in introducing Factual Finding No. 24, page 5. The Court concluded that the "Closure of the Airport would have a negative impact and effect on the area's economy." There is no foundation for this conclusion, since Intervenors did not introduce, nor propose closure of the Airport. The gratuitous inclusion of the "Factual Finding" is irrelevant and unfairly prejudicial to Intervenor "B".
The Court excluded Intervenor "B"'s evidence and expert witness that would have established a significant loss of property values, while it accepted the Airport's claim of a $1.2B benefit to the community. The Airport and Intervenor "C" offered testimony that described the supposed economic benefits of the Airport based upon the entire region. Intervenor "B" sought to introduce expert testimony and bona fide FAA studies proving the loss of property values in the 65 CNEL contour and to the entire region. This evidence and testimony would have offset the exaggerated, and inflated economic benefits of the Airport claims for the community. Intervenor "B"'s evidence was excluded because a specific study within the 65 CNEL contour was not done. Yet the claims of Intervenor "C" and the Airport are based upon information derived from the entire region.
The exclusion of this key evidence provided a distorted and inaccurate picture of the net benefit (or loss) of the Airport to the community. The exclusion of witnesses and evidence that would clearly establish that the benefits of the Airport come at a very high cost to the community was unduly prejudicial to Intervenor's "B"'s case.
The Administrative Procedures Act states that an administrative hearing "need not be conducted according to technical rules relating to evidence and witnesses..." Gov. Code Sec. 11513(c). It was the intent of the Legislature to provide an alternative, more expeditious and less costly process to resolve regulatory and administrative matters.
It is long settled that strict adherence to the Evidence Code and civil court rules and procedures are not mandated in an administrative hearing. The parties are not required to follow the technical rules of evidence (Govt. Code Sec. 11513(c):
"(c) the hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions."
The Court in the case at bench applied the strict rules of evidence, even though the Administrative code allowed the Court to use a lesser standard in order to reach a fair and objective decision.
If the California legislature had intended administrative hearings to be governed by the Evidence and Civil codes, it would have declared so. The legislature would not have established an elaborate system to handle administrative matters and set out mechanisms and procedures in the Government Code. In fact this case would be tried in a Superior Court, not by an Administrative Law Judge, operating under the explicit guidelines of the Administrative Procedures Act.
The evidence Intervenor "B" sought to introduce regarding diminished property values was plainly admissible, relevant, and the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs and should not have been excluded. The exclusion of probative evidence from being introduced by the trier of fact unduly prejudiced Intervenor "B"'s case. Such evidence would have clearly led to the imposition of variance conditions that are in the public's interest, and within the objective of the State noise regulations. This situation must be corrected by Caltrans.
Major flaws were present in the Court's legal analysis. The Court failed to order LAWA to implement noise abatement measures that were implementable because they were grandfathered under FAA rules and fully within the Airport's domain:
(1) A critical flaw in the Proposed Decision adopted by Caltrans was the lack of recognition by the Court of the ability of Caltrans to order conditions that were grandfathered, under ANCA, and thus fully implementable by the Airport, without FAA approval. LAWA's ability with respect to phasing out Stage 2 aircraft from the Airport is unique. The Board of Airport Commissioners (BOAC) proposed a phase out of Stage 2 jets from VNY prior to October 1, 1990, when ANCA became effective. This proposal grandfathered LAWA's ability to phase out Stage 2 aircraft without requiring FAA permission, and thus could be ordered by the Court.
The legal analysis of the Court is in error, when it states that "The Department may not impose conditions that directly affect aircraft or flight operations." (Decision, page 13, last paragraph). A more accurate recitation of the statement should close with the comment, "without following FAA regulations and procedures." While the Court cannot directly order a curfew on helicopters, a major source of noise complaints at the Airport, it could have required LAWA to undertake a Part 161 Study toward this end. A Part 161 Study, in compliance with FAA guidelines could have effectuated a helicopter curfew and would have a direct and significant impact on the incompatible land use.
The Court also is in error in maintaining a disconnect between what can be implemented by a local Airport proprietor, and what can be ordered by the State in a variance hearing. Clearly if an action, control or procedure is permissible by an Airport proprietor, and within its legal jurisdiction, then it can also be ordered by Caltrans. To maintain otherwise would mean that Caltrans has no ability to order any variance conditions, since all activities are within the domain of the Airport proprietor, and out of range of Caltrans. This position is patently illogical, totally without merit, and an incorrect legal analysis of case law.
(2) Similarly the Court failed to order compliance with the 12,500-pound limit on air taxis and charters. This was a crucial condition of the 1988 variance that should have been re-imposed and enforced in the action at bench. Caltrans must reconsider its Decision in light of the fact that LAWA can impose conditions, either because they were grandfathered, or have already adopted, but were not enforced.
(3) The Court's legal analysis is also flawed with respect to the enforcement of Resolutions adopted by the BOAC. Factual Finding 41 states that the "City argues that the policy contained in the resolution is not legally enforceable because it was never enacted as an ordinance." (Proposed Decision, page 8).
LAWA's only means of controlling and managing its activities is through resolutions because of city charter restrictions. LAWA does not have the ability to pass ordinances, since these are within the exclusive domain of the City of Los Angeles by charter provision. For LAWA to ignore its ability to enforce resolutions because they are not ordinances would mean that LAWA would not be able to regulate is own affairs, operations, control leases, establish policies or enforce rules.
Case law is clear that an agency can pass resolutions, and these are a reasonable exercise of its police power. If a resolution is passed in the manner and with the statutory formality required in the enactment of an ordinance, it will be as binding and effective as an ordinance. (Central Manufacturing District, Inc. v. Board of Supervisors, 1960, 176 C.A.2d 851). For many purposes, resolutions and ordinances are equivalent terms. (Boyle v. Crowe, 1920, 184 Cal. 149)
It is shocking that LAWA would be permitted to duck out from under a variance condition imposed in 1988 by Caltrans, claiming that it is unenforceable because it is a resolution, not an ordinance. Such sophistry is clearly unreasonable. Caltrans must reconsider its Decision since a substantial amount of noise is caused by air taxi and charter operations using aircraft weighing over 12,500 pounds.
The Decision adopted by Caltrans on May 18, 2000 is a weak, and ineffective means of addressing the noise problem because it contains virtually no meaningful conditions, short of periodically reporting on soundproofing a handful of residences. The Court clearly acknowledged in its Factual Finding No. 17 that "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." (Proposed Decision, page 4) (emphasis added).
The 1988 variance clearly shows that the previous conditions went further than the present order, and even these conditions were grossly inadequate to staunch the expansion of the incompatible land use. Unless Caltrans reconsiders its Decision and impose additional significant conditions, it will fail in its state mandate to "reduce the noise impact area of the airport to an acceptable degree in an orderly manner over a reasonable period of time" (Section 5050, Title 21, CCR)
Surely no rational person would accept the notion that the noise level would be allowed to increase, impacting many thousand more residents, while being mitigated by soundproofing only a handful of local residences. Carried to its fullest, the Airport could soundproof 1053 residences, thus eliminating the "theoretical" noise problem and then expand its operations and noise contour with impunity.
Caltrans' dual role in aviation has been clearly defined by the legislature. On the one hand Caltrans must protect and foster the growth the State's aviation system, and at the same time regulate, enforce and implement the State noise regulations. This is a difficult task that requires balancing competing interests. One of the purposes of hiring an Administrative Law Judge is to assist in performing its functions objectively. If Caltrans does not carry out its dual role fairly then it severely compromises the integrity of the entire process.
In the case at bench, Caltrans hired the Judge to try the facts in the exercise of its regulatory function. Then it changed hats, becoming a protector of the aviation industry and unfairly biased the process. In doing so, Caltrans lost its objectivity and acted in the capacity of a pro-aviation industry trade group. Caltrans must reconsider its decision and separate its regulatory functions from its function of aviation industry advocate.
Caltrans failed to provide Intervenor "B" with due process because it adopted the Court's Proposed Decision, issued on April 19, 2000, without providing Intervenors an opportunity to review the Proposed Decision and to comment on it. Caltrans appears to want it both ways, accepting or rewriting the Courts Proposed Decisions, based upon their arbitrary and subjective pursuit of protection of the aviation industry.
In the recently completed variance for LAX, L-9604014, Caltrans did not agree with the Court's Proposed Decision. It then circulated the Proposed Decision for comment among the parties. Then it re-wrote the Courts decision to its liking. This matter is now in the courts, where the ability of Caltrans to capriciously and arbitrarily rewrite Court decisions will be carefully examined. See City of El Segundo v. California Department of Transportion, City of Los Angeles, 2000, B 130934, Los Angeles County Super. Ct. No. BS051651.
In the Van Nuys variance case, Caltrans appeared to be satisfied with the ALJ's Proposed Order, made no changes in it and hurriedly adopted it on May 18, 2000. This was done without providing Intervenors a chance to review and comment upon the Proposed Decision.
Due process dictates that Caltrans follow a consistent procedure, and submit Proposed Decisions to the parties for comment. Had it done so in the Van Nuys Airport case, errors in Factual Findings, and incorrect interpretations of law would have been avoided.
For the reasons set forth above, Caltrans should correct its mistakes in the decision, find for Intervenor "B", and place those conditions on the variance requested by Intervenor "B" in its Initial Closing Brief, including a Noise Impart Area Reduction Plan (NIARP), phase out of Stage 2 jets, mandate a Part 161 Study to consider cufrews on helicopters, enforcement of the 12,500 lb. weight limit on air taxis and charters and any other conditions to minimize noise that were grandfathered to VNY, prior to the passage of ANCA on October 1, 1990. In the alternative, Caltrans should vacate and set aside its Decision of May 18, 2000.
Dated June 1, 2000
Class "B" Intervenors
Gerald A. Silver, President - homeowners of Encino - dba Stop the Noise!