Van Nuys Airport Variance Hearing

Class "B" Intervenor's Response to Dept. of Airports Motions in Limine 6/4/99

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 Case No. OAH No. L-1998040119 Application of: CITY OF LOS ANGELES, DEPARTMENT OF AIRPORTS (VAN NUYS) Respondent.

CLASS "B" INTERVENOR'S RESPONSE TO RESPONDENT LOS ANGELES DEPT. OF AIRPORTS MOTIONS IN LIMINE

Pre-Hearing Conference ) Date: June 18, 1999 ) Time: 10:00 a.m. Location: Airtel Plaza Hotel)

COMES NOW, Class "B" Intervenors, who hereby submit their response to Respondent, Los Angeles Department of Airport's, Motions in Limine.

Introduction

Respondent seeks to exclude probative evidence by using Motions in Limine to prevent Intervenor "B" from bringing before the court significant facts that support Intervenor "B"'s position. All of the exhibits offered by Intervenor "B" seek to address the specific factors that must be adjudicated before granting a variance. These issues include (California Code of Regulations, Title 21, Section 5053):

(1) economic/technological feasibility

(2) noise impact should the variance be granted

(3) value to the public of service for which the variance is sought.

(4) whether the airport proprietor is taking good faith measures to achieve noise standards.

Each item listed in Intervenor "B"'s Pre-hearing Conference Statement is clearly relevant and responsive to one of the four categories and exclusion of such evidence would unfairly and severely prejudice Intervenor "B"'s case.

Finally, Respondent includes in the guise of its Motion in Limine a pretrial memorandum concerning the legal issue of federal preemption. Respondent's premature memorandum should be stricken. Most importantly, this legal memorandum does not concern evidentiary matters or Motion in Limine issues whatsoever.

Moreover, the court has not yet requested legal pretrial memoranda, and permitting respondent to unilaterally brief this critical issue in this abbreviated forum is severely and unduly prejudicial to Intervenor "B."

Without warning of any kind, we were served with both Respondent's [9:45 AM] and Class "C"'s [4:13 PM] Motion in Limine and premature legal pretrial memorandum on Friday, May 28, 1999, on the eve of the three day Memorial Day holiday weekend. Our response to these motions is due on Friday, June 4, 1999. We have been required to devote the majority of the four business days allotted to us between June 1-4, 1999, to prepare our response to both Respondent's and Class "C"'s Motion in Limine.

It is unreasonable to require us in this limited time frame to additionally submit a response to Respondent's surprise, premature legal memorandum on a lengthy, technical, and critical legal issue. Moreover, this issue is the proper subject of oral argument before the Court during the administrative hearing. Consequently, while we include a brief outline showing that Respondent's surprise, premature memorandum is not well taken, we intend to fully brief this issue when the Court asks for pretrial memoranda, and we ask that the Court reserve time during the administrative hearing for oral argument on this issue.

Response to Evidentiary Objections

Respondent's Motion in Limine first should be denied because it is obviously improper. It rests solely upon the technical rules of evidence that do not govern here. It is long settled that strict adherence to the Evidence Code and civil court rules and procedures should not be mandated in an administrative hearing. Contrary to Respondent's position, the parties are not required to follow the technical rules of evidence (Govt. Code Sec. 11513(c).

If the California legislature had intended administrative hearings to be governed by the Evidence and Civil codes, it would has declared so. The legislature would not have established an elaborate system to administer administrative matters and set out mechanisms and procedures in the Government Code. In fact this very hearing would be conducted in a Superior Court, not by an Administrative Law Judge, operating under the explicit guidelines of the Administrative Procedures Act.

The Administrative Procedures Act states that an administrative hearing "need not be conducted according to technical rules relating to evidence and witness... " Gov. Code Sec. 11513(c).It was precisely the intent of the Legislature to provide an alternative, more expeditious and less costly process to resolve regulatory and administrative matters.

Nevertheless, even if the technical rules of evidence were examined, Respondent's motion should still be denied, as all of our proposed documents are relevant and admissible. The test of admissibility of evidence is whether the presiding officer determines that the evidence of witnesses have substantial probative value or would necessitate undue consumption of time. Therefore relevant evidence and hearsay is admissible if it does not consume an undue consumption of court time.

As we show below, all of the evidence we seek to introduce is plainly admissible, relevant, not excludable as hearsay. It appears that Respondent seeks to preclude this probative evidence from being introduced as a self-serving method of excluding significant evidence that Respondent wishes to keep from the trier of fact. This evidence clearly leads to the imposition of variance conditions that are in the public interest.

Response to Respondent's First Motion in Limine

Respondent seeks to exclude Intervenor "B"'s exhibit items 1-18,38,39,43-45, 48,57-61,64,66,73-76,78,80-87,89-91,94-97,103,104,106,111,119,121 and 122 because they consist of newspaper articles, leaflets, studies, surveys, analyses, reports, periodicals and the like on the basis of hearsay, relevance and lack of foundation.

Contrary to Respondent's arguments, these items are plainly relevant. Each item objected to in Intervenor "B"'s Pre-Hearing Conference Statement by Respondent is responsive to at least one of the four criteria that must be adjudicated before granting a variance.

For example, a key determination that must be made by the trier of fact is the "noise impact should the variance be granted." Code of Regulations, Title 21, Section 5053(b).

The items sought to be excluded by Respondent are responsive to this issue as they discuss noise impacts on human behavior, damage to childrens' health, interference with daily human activities effects upon speech, reading ability, study learning and hearing loss. They also demonstrate that there are residents living within the 65 CNEL contour, and that the airport proprietor failed to exercise good faith measures to minimize noise within the 65 CNEL contour. They also address efforts by fixed based operators (FBO's) to expand rather than minimize noisy Stage 2 jet operations via Internet advertising. This in turn increases the size of the 65 CNEL incompatible land use area. Included are exhibits related to FAA guidelines on noise compatibly planning and master planning issues (including planning of land within the 65 CNEL).

These documents are statements by noted medical and health authorities. Much of the evidence offered in the exhibits is incontrovertible and widely accepted. Accordingly such evidence should not be excluded from an administrative hearing simply because the Respondent cannot cross examine the authors where it would unfairly prejudice Intervenor "B"'s case.

Moreover, Respondent will not suffer prejudice if its Motion in Limine is denied. Rather than seeking to prematurely exclude relevant and admissible documents, Respondent's proper recourse is to present contradictory evidence to the Court during the hearing. Then, after the Court has had the opportunity to evaluate our evidence in light of our entire case and any contradictory showing by Respondent, if the Court deems the exhibits irrelevant or lacking foundation or probative value, they can be excluded at that time.

Respondent's Second Motion in Limine

Respondent seeks to exclude Intervenor "B" items 22,23,31,32,40,47,77,92,107, 110,113,116,117,123,125,126,128 and 131 claiming that are hearsay, lack foundation and are irrelevant.

Respondent's motion is again unmeritorious, particularly since we are seeking to introduce them in an administrative hearing where the technical rules of evidence are inapplicable. The documents are plainly relevant because they reveal significant facts, details and actions that go to the heart of the matter of whether the proprietor used good faith measures to achieve the noise standards.

Many of the items are letters written on behalf of community associations that bring to light the inaction and delays the airport proprietor used in failing to actively pursue the Part 150 Study.

Indeed, the documents specifically address the 12,500 lb. weight limit on air taxis and charters, comments by officials to address the noise issue, failure to use good faith measures to minimize noise, failure to aggressively pursue a Part 150 Study and Master Plan that would minimize noise within the 65 CNEL contour and lack of good faith by the airport proprietor in using the Part 150 Study to minimize noise.

The documents are also not hearsay as they are not offered for the truth of the matter asserted in the documents. They clearly show that the airport proprietor was aware of certain policies and BOAC Resolutions that would minimize noise within the 65 CNEL contour, but failed to properly enforce them.

For example the BOAC had adopted a 12,500 lb. weight limit Resolution on air taxis and charters at Van Nuys Airport. Diligent enforcement of this policy would have significantly reduced noise within the 65 CNEL contour. However, this BOAC Resolution was not enforced and to a large extent has contributed to the noise problem that now exists and the variance seeks to address.

As a result, these documents are relevant and admissible. They should not be prematurely excluded now to the significant undue prejudice of Intervenor "B," on technical rules which do not govern this administrative hearing.

Response to Respondent's Third Motion in Limine

Respondent seeks to exclude Intervenor Group "B"'s exhibits 52,53,71,239 (maps, charts and aircraft noise characteristics,etc.) on the grounds that they are hearsay, irrelevant and lack foundation.

These objections are not well taken. The documents are not irrelevant. They contain key charts, data, helicopter operation logs and similar information that are probative on the issues of the economic and technological feasibility of meeting State noise criteria, helicopter routes and logs as they impact residents within the 65 CNEL contour.

Moreover, as will be shown at the hearing, a portion of the noise problem within the 65 CNEL is generated by late night and early morning helicopter operations. The items offered show relevant helicopter routes used to depart and arrive from the airport, and contain logs of operations and similar data.

Finally, it is unclear why respondent claimed lack of foundation as a grounds for excluding these documents. It is obvious, we were not required to demonstrate foundation in our list of exhibits. At the hearing on this matter, we will provide any necessary foundation to introduce these exhibits.

Therefore, these documents should not be excluded by the Court at this time. As with all of our other exhibits, Intervenor "B"'s case would be unduly prejudiced if this information was excluded, and if, during the trial process the court deems the exhibits irrelevant or lacking in probative value, they can be excluded at that time.

Response to Respondent's Fourth Motion in Limine

Respondent improperly seeks to exclude Intervenor Group "B"'s items 1-18,64,94-100,104,106,248 and other "scientific, technical or professional" exhibits on the irrelevant grounds that an expert witness may not be cross examined on these documents unless certain elements are met pursuant to Evidence Code Sections 720 and 721.

Respondent's grounds for exclusion are utterly baseless here. First, as discussed previously, the stringent rules of evidence do not apply in administrative hearings, and therefore these items should not be excluded. However, even if the rules of evidence governed, the Evidence Code sections cited by Respondent do not state grounds for exclusion of scientific or technical information. They simply limit the documents with which an expert can be cross-examined--a red herring issue here.

We, of course, have not indicated that we seek to cross examine Respondent's witnesses with these documents. Rather, we clearly noted that we simply intended to introduce them into evidence. Neither the Evidence Code Sections 720 and 721 nor any other provision prevents their introduction.

Indeed, these items are of obvious probative value as they address important scientific and technical points regarding noise impact should the variance be granted. These documents discuss the noise impacts on health and human behavior, damage to children's health, interference with daily human activities, effects upon speech, reading ability, student learning and hearing loss. They also address the number and types of jet and helicopter activity that impact the 65 CNEL contour.

Some of these documents are publicly available, considered authoritative, relied upon as accurate in the course of business and/or publications concerning facts of general notoriety and interest. See Evidence Code Sections 1271 and 1341.

Response to Respondent's Fifth Motion in Limine

Respondent seeks to exclude Intervenor Group "B"'s exhibits 20,22-25,27,28,31-34,40-42,46,47,49-51,77,92,107-110,113,115-118,120,and 123-133 claiming that they are hearsay, irrelevant and lack foundation. Again while the standards of proof that apply to administrative hearings should be used here, the documents also meet all relevance and hearsay standards. These documents are relevant as they concern the issue of good faith on the part of the proprietor to minimize the noise impact within the 65 CNEL contour.

In response to the fact that their relevance is obvious, Respondent asserts that the letters are "outdated and therefore irrelevant." Respondent's Motion at 9. Such a claim is groundless. Respondent's assertion is based solely upon its unsupported and plainly incorrect assumption that the date in which these letters were written somehow makes them all, per se, "outdated," and therefore not relevant.

Here, as we will show at the hearing, these letters show a pattern of conduct by the airport proprietor. Consequently, they are neither "outdated" nor irrelevant on any other grounds. Indeed, if Respondent wishes to demonstrate that the letters are irrelevant based upon their dates, Respondent's proper avenue is to demonstrate this at the hearing based upon facts or evidence. No grounds exist to permit Respondent to arbitrarily short circuit the introduction of evidence based upon the arbitrary surmising of Respondent.

These documents are also not hearsay because many were written by Gerald A. Silver who will be at the hearing. The documents also are not offered for the truth of the matter asserted. Rather they clearly show that the proprietor was aware of certain policies and BOAC Resolutions and failed to properly enforce them.

In conclusion, these documents as with Intervenor "B"'s other exhibits, are properly received into evidence.

Intervenor "B"'s Response on the Federal Preemption Issue

As we noted previously, Respondent improperly attempts to include a pre-trial legal memorandum of law in its Motion in Limine. While we will wait for an order of the Court and oral argument at the administrative hearing to fully address the issue raised by Respondent. For the convenience of the Court, we include a brief summary of our position on the issue of federal preemption.

Respondent claims that the proprietor has virtually no control over the noise emanating from the airport. They rely upon cases that are good law, but conveniently overlook those portions of the decisions that do not support their position.

Congress has clearly defined the proprietor rights of airport proprietors. All of the cases cited by Respondent do not negate the fact that a proprietor has rights that go beyond mere land use matters.

The Code of Regulations, Title 21, Section 5037 outlines numerous methods for controlling noise including encouraging use of the airport by classes of aircraft with lower noise levels, discouraging those with higher levels, encouraging approach and departure paths that minimize noise, etc. Most importantly Section 5057 states that airports are "not limited to" these methods.

The Respondent seeks to avoid its responsibility to minimize the noise impact by claiming they do not have the legal authority to do so under federal law. This is simply not the case.

Another fact that must not be overlooked is that the airport proprietor has grandfather rights regarding the phase out of Stage 2 aircraft and the imposition of curfews on Stage 2 aircraft.

The Respondent proposed various noise reduction measures that apply to Stage 2 aircraft, prior to Oct. 1, 1990, the date Airport Noise and Capacity Act (ANCA) came into effect. Thus the variance process can include Stage 2 noise control measures that might not otherwise apply.

The Respondent seeks to address matters of law in an inappropriate forum. Issues such as federal preemption should be placed before the trier of fact and resolved at the trial. Respondent seeks to address the matter of federal preemption via Motions in Limine.

Intervenor "B" wishes to point out that the CalTrans may place a variety of controls on the airport though the variance process.

The Respondent ignores this and instead dwells on the preemptive effect of federal aviation laws but does not discuss what is permitted under those laws. The Respondent hopes to create the impression that noise control is an entirely federal concern and that there is effectively nothing that CalTrans or the Respondent can do to control noise at the Airport.

Although the FAA exercises considerable control over many aspects of aviation, regulation of airport noise is an area of shared responsibility between the FAA, airport proprietors and state and local governments.

This shared responsibility and authority is reflected in the FAA's regulations under Part 150 and Part 161. Given that reservation of local authority, it is not surprising that the Respondent, while making sure to expound on the preemptive effects of older case law, makes no effort to explain its scope and limits.

Aircraft noise is a multidimensional problem involving shared responsibilities. The FAA has the authority to abate aircraft noise through various means such as revising flight operational procedures and managing the air traffic control system and areas, consistent with the highest standards of safety. State and local governments ultimately determine at what level various noise exposure levels are compatible with residential land uses.

Careful analysis of these regulations demonstrates that (1)federal law does not prevent the Respondent from adopting noise abatement measures, some without FAA approval, and (2) that completion of a Part 150 study does not preempt the requirement of the California Airport Noise Regulations that the Respondent implement a plan to reduce the noise impact area.

With the passage of the Airport Noise and Capacity Act of 1990, 49 U;S.C. Sec. 47521 - 47533 (1997) ("ANCA") and its implementing regulations, 14 C.F.R. Sec. 161.1 - .505 (1996) ("Part161"), Congress limited (but did not eliminate) the scope of an airport proprietor's power to adopt certain noise rules. Under ANCA, FAA approval is required only for "noise and access restrictions" that affect Stage 3 aircraft." 49 U.S.C. Sec.47524(c)(2); 14 C.F.R. Sec. 161.301 -.305. Although the requirement of FAA approval limits a proprietor's power to impose such restrictions, the FAA could, of course, approve restrictions on Stage 3 aircraft at the request of the airport proprietor.

But that is the only situation in which the FAA must approve a noise or access restriction. An airport proprietor may approve noise and access restrictions on Stage 2 aircraft, after following certain notice and comment procedures, without obtaining FAA approval. 49 U.S.C.g 47524(b); 14 C.F.R. Sec. 161.201-.213.

ANCA leaves the imposition of Stage 2 restrictions in the sole discretion of the airport proprietor. Similarly, ANCA expressly permits an airport proprietor and airlines to agree to adopt Stage 3 or Stage 2 restriction without FAA approval. 14 C.F.R. Sec. 161.107.

(The phrase "noise or access restriction" is defined broadly to include almost any noise restriction that directly or indirectly affects Stage 2 or Stage 3 aircraft. 14 C.F.R. Sec. 161.5 (1996))

ANCA does not regulate all operational procedures that might be employed to control noise, however. Operational procedures that do not limit the number of operations, such as flight tracks, noise abatement approach and departure procedures and profiles and taxiing and engine run-up procedures, are expressly excluded from ANCA's review and approval procedures. Id. at Sec. 161.7(a).

Under examination, ANCA does not possess the preemptive force the Respondent implies. Indeed, aside from imposing new procedural requirements, the only noise and access restrictions that now require FAA approval are noise and access restrictions affecting Stage 3 aircraft. FAA approval is not required for the following noise control mechanisms that affect the flight of aircraft:

Noise or access restrictions on Stage 2 aircraft.

Consensual noise or access restrictions on Stage 3 aircraft.

Noise Abatement Departure Procedures.

Conclusion

For the foregoing reasons, Intervenor "B" asks that the Court deny Respondent's Motions in Limine and receive all of the Exhibits listed in Intervenor "B"'s Pre-hearing Conference Statement into evidence.

Dated: June 4, 1999

Intervenor Group "B" By Gerald A. Silver, President Homeowners of Encino, Inc.

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PROOF OF SERVICE - MAILING LIST

CLASS "A" INTERVENOR REPRESENTATIVE
Lance Paris
Safety Mgmt./Consulting Serv.
PO Box 7262
Van Nuys, CA 91409
(818)787-7790

CLASS "C" INTERVENOR REPRESENTATIVE
Thomas Ryan, Esquire
State Bar #143148
McDERMOTT WILL & EMERY
2049 Century Park East, 34th Floor
Los Angeles, CA 90067
(310)277-4110, Fax (310)277-4730

REPRESENTING STATE OF CALIF. DEPT. OF TRANS.
Richard D. Birdsall, Esq.
Department of Transportation
Legal-Mail Station 57
1120 N Street
Sacramento, CA 95812
(916) 654-2630, Fax (916)654-66128

REPRESENTING LOS ANGELES DEPT. OF AIRPORTS
Lynn Mayo, Deputy City Attorney
1 World Way
PO Box 92216
Los Angeles, CA 90009